^Vt. 


Duk«  "University  A^i^>iary 


THE 

Unanswered  Argument 

AGAINST  THE 
CONSTITUTIONALITY 

or   THE 

THE  SO-CALLED  COMSTOCK  POSTAL  LAWS, 

AND   FOE   THE 

Inviolability  and  Free  and  Equal  Use 


UNITED  STATES  MAIL: 

Containing  Citations  from  the  Ablest  American  States- 
men and  Jurists, 

BY 

T.  B.  WAKEMAN, 

Of  the  Xew  York  Bar. 

TO    WHICH    IS    ADDED    THE     OPINIONS     OF     DISTINGUISHED 

AUTHOES     AND    OTHERS    WHO    HAVE    EXAMINED 

THE    SUBJECT. 


ISSUED  BY  THE  NA' 


NEW    YOi?Sf^,phlet  Coliecljort 
TioNAL  D;ii:pi^v6S^cfey?HyN. 

1  880  V^^^ 


93  Nassau  Street/  "■•■ 


GENTLEMEN  OF  THE  DEFENSE  COMMITTEJ^: 

You  request  a  few  'words  to  introducQ.f^  reissue  pf 
iry  FaDetiil  Hall  Speech  for  general  circulation.     * 

li'.ij,-*.-.  ■'■     '■'■■  ''J.^ 

1.  As  to  the  style  and  tone  of  th$Jt  !^pe;^ch,,,I 

wish  it  to  be  reniewibered  that  it  waSjT(^eJiy,e^fd,t|(? 
an  mcligvation  meeting  in  the  warmest  sense  of  the 
term  ;  and  tluit  any  expressions,  apparently  (Jisrc; 
spectful  to  theC(?urts  or  Judges  or  "p9wevs  tl^at 
be,"  must  be  allowed  for  in  the  saijfte  .")Taj  tha,t 
mucli  was  '  pardoned  to  the  Spirit  of  Liberty  '  in  the 
Al)olition  and  Eepublican  reviews  of  the  Dred 
Scott  decision. 

2.  As  to  tlie  substaiiOe  of  the  argument  I 'hfty,f 
never  heard  any  answej^  to  it/nnd  I  ddftftifeijlii^^Xt 
that  any  can  be  made.  The  Federal  ©bvterBaaietUt 
of  tlie  United  States  is  one  of  lowers  spec; 'ili^ 
granted  alid  limited   by   the    Constitute  ii.yy  -Jl'b* 


vi        INTRODUCTION  TO  F.'^"UIL  HALL  SPEECH. 

claim  that,  bectuise  these  pov^^crs  are  exercised 
through  Departments,  that,  tlierefore,  it  can  use 
these  Departments  {e.  g.  the  United  States  Postal 
Department!  for  any  ulterior,  political,  moral,  or 
crimmal  purposes  it  may  fancy,  is  simply  to  throw 
away  the  Constitution,  and  to  give  the  General 
GjpYernmep.t  unlimited  criminal  and  other  juris- 
diction, and,  in  the  end,  absolute  power. 

The  second  part  of  the  argument  is  equally  un- 
answerable, to  wit,  that  this  Legislation  '^  abridges 
\he  freedom  of  the  yress^^  and,  therefore,  the  liber- 
ty of  the  people.  The  Post  Office  is  the  neces- 
ftity  of  every  civilized  person,  and  tlie  principal 
ineiii^ '  bf  "publication.  Every  person  has  a  free 
and  eqiiaPright  to  its  use,  and  to  tlie  riglit  of  pub- 
lication by  it  witliout  pAor  restraint,  espionage, 
or  fol-f^itur^  of  his  property.  He  is  liable  for  the 
abtise  of  tliese  rights  just  as  he  is  liable  for  other 
abiiBcs,  1^ut  he  cannot  be  constitutionally  deprived 
of  them  before  hand  by  a  Postal  Censorship  estab- 
lished t)y  CoTigress. 

5.  The  importance  of  this  subject  is  growing, 
more  apparent  from  day  to  day.  Wliere  the  inch 
Was  usurped  the  ell  is  being  taken.  From  super- 
vision of  ^'  improper  "  matter,  our  Postal  Censors 
have  included  Lotteries,  and  they  are  now  busily 
engacT'^d  upon  the  correspondence  of  the  Brokers  of 
Wall  fc    oet.     The   plea  of  necessity,  and    a  little 


INTRODUCTION  TO  FANEUIL  HALL  SPEECH.      vii 

public  clamor  to  justify  the  extensions  of  this 
power,  will  place  our  "  inviolable  Post  Office  "on 
a  par  witli  that  of  Russia.  What  is  done  through 
this  Department,  can  and  will  be  done  through 
the  other  Departments.  The  result  will  be  inev- 
ita])le.  The  consolidated^  centralized^  general  Gov- 
ernment means  the  Empire  ! 

Let  no  one  be  deceived.  In  the  end  there  can 
be  no  popular  liberty  unless  the  Federal  character 
of  our  Government  is  maintained.  In  Jefferson's 
words,  we  must  cherish  "  the  support  of  the  State 
Governments  in  all  tlieir  riglits  as  the  most  com- 
petent administrators  of  our  domestic  concerns  and 
the  surest  hulvmrks  against  anti-Hepxiblican  ten- 
dencies P 

At  the  same  time  he  counsels  the  balance,  viz.; 
"  The  preservation  of  the  General  Government,  in 
its  whole  constitutional  vigor,  as  the  slieet  anchor 
of  our  peace  at  home  and  safety  abroad." 

4.  The  only  possible  remedy  now  for  the  sacrifice 
and  danger  that  these  United  States  Postal  Laws 
have  brought  upon  us,  is  an  appeal  to  the  People 
and  to  Congress,  until  their  true  character  and 
danger  is  understood.  The  Courts — rather  acci- 
dentally than  otherwise  perhaps — ^have  placed  them- 
selves in  a  position  (as  they  did  in  regard  to  the 
United  States  Bank,  the  Legal-Tender,  and 
Slavery  generally,)   in  which  no  relief  or  safety 


viii      INTRODUCTION  TO  FANEUIL  HALL  SPEECH. 

can  be  expected  from  them.  Tliey  have  made  a 
precedent  in  tlie  Jackson  case  that  will  ratify  any 
claim  that  may  be  regarded  as  morally  or  other- 
wise desirable  by  the  Departments. 

Whether  our  Federal  Government  and  our  Liber- 
ties are  to  be  preserved  or  not,  is  again  a  question 
resubmitted  to  the  People  and  their  Congress,  and  in 
no  way  more  decidedly  than  by  the  patent  usurpa- 
tions of  these  United  States  Postal  Laws. 
Yery  respectfully  yours, 

T.  B.  WAKEMAN. 


[Tbuth  Seeker  Tbacts.    No.  144.] 


THE 

COMSTOCK  POSTAL  LAW 

UNCONSTITUTIONAL 


Plain  Duty  of  all  Citizens. 


A  SPEECH  BY  T.  B.  WAKEMAN. 


To  %ohich  is  appended  the  opinion  of  Justice  Field, 


jl  letter  to  the  officers  of  the  third  liberal 
league  in  the  city  of  new  york,  in  re- 
sponse to  an  invitation  to  address  them. 

Gentlemen:  I  feel  greatly  honored  by  the  invita- 
tion to  address  your  Liberal  League  upon  the  ques- 
tions raised  by  the  petition  against  the  Comstock 
Postal  Laws  of  1873,  which  was  so  largely  signed,  and 
presented  to  Congress  at  the  last  session.  But  while 
I  appreciate  the  importance  of  the  subject,  I  find 
that  a  public  address  would  be  inconvenient;  and  I 
hope  that  you  will  accept  my  answers  to  your  ques- 
tions by  this  letter  and  the  inclosed  address  at  Fan- 
euil  HalL 


4:  THE  COIVJ-STOCK   LAW9. 

You  refer  to  the  petition  as  having  been  drawn  by 
me,  and  "wish  to  know  in  wtat  respect,  if  any,  my 
views  have  changed  in  regard  to  it." 

My  answer  is  that  the  subsequent  discussion,  and 
particularly  the  decision  of  the  Supreme  Court  in 
the  Matter  of  Jackson,  have  changed  my  views  only 
to  increase  the  conviction  that  the  ground  taken  in 
that  petition  is  the  only  safe  one,  unless  the  people 
are  willing  to  give  up  their  constitutional  guaran- 
tees of  liberty  of  person  and  of  the  press.  You 
probably  inquire  about  a  "  change  of  views  "  because 
some  have  intimated  that  the  petition  was  "hasty, 
ill  considered,  and  ill  advised."  Let  me  assure  you, 
on  the  contrary,  that  the  petition  was  carefully  con- 
sidered and  revised  by  several  lawyers,  publishers, 
artists,  and  others,  Liberal  and  otherwise,  before  the 
responsibility,  which  was  deeply  felt,  of  sending  it  out 
for  signatures  was  taken.  Although  Mr.  D.  M.  Ben- 
nettfe  arrest  was  the  occasion  that  called  it  forth,  it 
was  not  his  work  nor  that  of  any  one  person,  but 
rather  of  a  committee  of  consultation  to  whom  the 
matter  was  by  him  entirely  left.  The  whole  subject 
was  then  so  thoroughly  examined  that  I  do  not  hesi- 
tate to  say  that  no  law  case  nor  important  phase  of 
the  question  has  b^en  since  presented  that  was  not 
before  them.  The  only  important  facts  that  have 
since  occurred  have  been  the  conviction  and  impris- 
onment of  Mr.  Hey  wood  under  the  law,  and  the 
decision  in  the  Matter  of  Jackson,  in  which  the  Su- 
preme Court  of  the  United  States  (by  an  obiter 
dictum)  apparently  sustained  its  constitutionality. 

Another  impression  should  be  removed,  which  is 
to  the  effect  that  the  petition  was  sent  out  simply 
as  a  Liberal  party  movement,  designed  to  aid  ono. 


THE   COMSTOCK   LAWS. 


TT 


particular  class  of  the  people.  It  was  intended  to 
be  above  all  partisan  or  sectarian  spirit,  purposes,  or 
"  traps."  It  aimed  to  combine  a  general  public  sen- 
timent so  as  to  carry  out  the  motives  of  those  great 
souls  who  raad*^  the  Constitution  "  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity." 
There  is  not  a  word  in  it  that  should  prevent  its 
being  signed  by  any  citizen,  no  matter  of  what  belief 
or  unbelief. 

It  is  a  matter  of  regret  that  this  petition,  and  th« 
roost  important  matter  it  presents,  has  been  left  to 
the  management  of  Liberals  only,  and  even  among 
them  has  been  made  a  subject  of  editorial  rancor 
and  rivalry  by  those  who  have  failed  to  rise  to  the 
height  of  the  question  involved.  It  is  only  to  such 
persons  that  it  appears  as  especially  a  Liberal  move- 
ment or  a  Liberal  "  trap."  This  trap  suggestion  well 
illustrates  the  narrow-mindedness  that  is  to  be  avoid- 
ed in  approaching  questions  of  this  character.  We 
are  told  that  if  you  dare  to  oppose  these  laws  you 
will  *•' fall  into  the  trap  "  of  allying  yourselves  and 
all  Liberalism  with  "  obscenity."  But  suppose  you 
do  not  oppose  them  ?  Do  you  not  then  ally  Liber- 
alism with  bigotry  and  fatal  betrayal  of  liberty?  Is 
not  the  latter  "  trap  "  the  worse  of  the  two  ?  But 
why  turn  this  into  a  trap  question  ?  It  is  not  a 
choice  between  Scylla  and  Charybdis.  Let  us  keep 
in  mid- water  and  on  the  high  sea,  trust  to  pure  mo- 
tives and  the  breezes  of  liberty,  and  "  traps  "  *'  to 
the  right  of  us "  and  "  to  the  left  of  us "  may  be 
safely  left  behind  to  catch  those  who  set  or  think 
of  ihera.  The  Liberal  party  or  sect,  like  every  other  in 
a  free  republic,  will  find  its  justification  and  victory 
only  in  so  far  as  it  makes  for  the  good  and  welfare 


6  THE   COMSTOCK   LAWS. 

of  the  whole  people.     That  liberty  of  the  person,  of 

speech,  and  of  the  press  are  the  great  means  of  effect- 
ing this  welfare  is  the  tradition  that  has  come  down 
to  us  associated  with  the  names  of  Otis,  Washinofton, 
Patrick  Henry,  Franklin,  Jefferson,  Madison,  and 
Paine,  and  which  it  was  the  purpose  of  the  petition 
to  help  to  continue.  The  belief  has  been  cherifshed 
that  this  tradition  was  embodied  in  the  Constitution 
and  its  amendments,  so  as  to  make  those  liberties 
the  fundamental  law  of  the  land.  The  question  is 
whether  these  liberties  can  be  "construed  out"  of  the 
Constitution  by  Congress  and  the  courts,  wbile  the 
people  are  blinded  by  appeals  to  their  prejudices 
against  Liberals  or  their  disgust  against  obscenity. 

In  the  true  point  of  view,  this  is  not  a  question  of 
obscenity,  but  of  liberty.  The  spirit  in  which  it  is 
to  be  approached  is  found  in  these  memorable  words 
of  Madison: 

"  It  is  proper  to  take  alarm  at  the  first  experiment 
on  our  liberties.  We  hold  this  prudent  jealousy  to 
be  the  first  duty  of  citizens,  and  one  of  the  noblest 
characteristics  of  the  late  Revolution.  The  free  men 
of  America  did  not  delay  until  usurped  power  had 
strengthened  itself  by  exercise  and  entangled  the 
question  in  precedents.  They  saw  all  the  conse- 
quences in  the  principle,  and  they  avoided  the  con- 
siequences  by  denying  the  principle.  We  revere  this 
lesson  too  much  soon  to  forget  it." 

But  as  to  the  attitude  and  importance  of  the  ques- 
tions involved,  I  think  I  could  give  no  better  answer 
than  to  send  you  a  report  of  my  address  delivered 
at  Faneuil  Hall,  Boston,  on  the  Ist  inst.,  at  the  great 
"  Indignation  Meeting "  there  held  to  consider  the 
violation  of  the  freedom  of  the  press  by  the  arrest, 


THE   COMSTOCK    LAWS.  7 

trial,  and  sentence,  under  this  law,  of  Ezra  H.  Hey- 
wood,  the  editor  of  The  Word,  now  published  at 
Cambridge,  Mass.  I  send  this  address,  instead  of 
writing  further,  also  because  its  main  points  were 
most  heartily  approved  by  the  large  and  intelligent 
audience  that  filled  the  old  Hall  to  overflowing;  and 
this  approval  gives  it  a  weight  beyond  my  individ- 
ual Opinion.     Very  respectfully. 

Your  obedient  servant,         T.  B.  Wakeman. 

August  8,  1878. 
To    CouKTLANDT    Palmer,    Esq.,    President,    and 

Other  Officers  of  Third  Liberal  League,  etc. 


THE  ADDRESS 

JLT  THE  INDIGNATION  MEETING,  HELD  AT  FANEUIL 
HALL,  BOSTON,  AUG.  1,  1878,  TO  REMONSTRATE 
AGAINST  THE  VIOLATION  OF  THE  FREEDOM  OF 
THE  PRESS  IN  THE  ARREST,  TRIAL,  AND  CON- 
VICTION OF  EZRA  H.  HEYWOOD,  EDITOR  OF 
"  THE  WORD,"  AT  BOSTON,  MASS.,  ELIZUB  WRIGHT, 
PRESIDENT. 

Citizens  of  Massachusetts,  and  therefore  by  Births 
right  Friends  of  Liberty : 
You  have  met  indignant  that  one  of  your  number, 
an  editor  against  whom  no  man»  woman,  or  child  has 
ever  complained  of  injury,  who  has  not  been  un- 
faithful to  the  old  Commonwealth  or  the  Nation,  has 
been  imprisoned,  as  if  a  common  felon,  by  the 
United  States.  You  come  under  a  sense  of  wrong, 
as  your  fathers  did,  to  this  old  Cradle  of  Liberty,  to 
ask  why  and  how  this  wrong  has  come  and  to  con- 
sult as  to  the  relief  and  remedy. 


9  THB   COMSTOCK   LAWS. 

The  answer  is  that  the  wrong  has  come  from  a 
violation  of  the  Constitution  of  the  United  States, 
and  of  that  very  liberty  the  blessings  of  which  our 
fathers  declared,  in  its  Preamble,  they  intended  to 
secure  by  it  to  themselves  and  their  posterity.  This 
violation  has  come  indirectly  and  ostensibly  for  the 
very  worthy  purpose  of  suppressing  obscenity.  Let 
me  say  at  the  outset,  that  I  respect  the  motives  of 
the  persons  who  have  formed  the  Society  for  the 
Suppression  of  Vice,  and  who  have  contributed  to 
sustain  it,  but  they  have  selected  an  improper 
*'Agent,"  and  used  means  unlawful,  unconstitutional, 
and  unworthy  of  them.  Your  President  has  intro- 
duced me  as  the  author  of  the  petition  so  largely 
signed  to  have  these  laws  in  question  repealed,  and 
I  wish,  therefore,  publicly  to  put  my  foot  upon  the 
libel  that  I,  or  others  who  have  signed  that  petition, 
have  so  done  as  the  abettors  of  obscenity  or  from  a 
desire  to  give  it  aid  and  comfort.  The  question  lias 
become  one  of  constitutional  liberty  and  freedom  of 
person,  speech,  and  press,  to  which  a  few  dirty 
pamphlets  in  the  mails  are  as  nothing.  We  are  all 
agreed  upon  the  question  of  obscenity — no  one  has 
a  good  word  for  that — but  the  issue  is  one  of  lib- 
erty, of  constitutional  liberty,  and  upon  that  we 
must  take  sides  at  once  or  it  will  be  forever  too  lute. 
People,  however  well  intended,  must  not  be  allowed 
to  imitate  the  bear  who  kept  the  flies  off  his  mas- 
ter's head  by  smashing  it  with  a  stone.  The  im- 
prisonment of  an  editor  for  anything  l:e  may  print, 
except  libel,  is  one  of  the  most  dangerous  stretches 
of  power  possible  in  a  free  republic,  and  worthy  of 
our  gravest  consideration.  We  must,  therefore, 
under  the  Oonstitution,  look  closely  into  the  meana^ 


THE   COMSTOCK   LAWS.  9 

and  purposes  with  which  this  deed  has  been  done. 
We  shall  find  that  the  means  are  laws  which  have 
been  passed  by  Congress  ;  that  by  obiter  dictum 
they  have  been  sanctioned  by  the  United  States 
Supreme  Court,  and  that  in  effect  they  take  the  very 
heart  out  of  the  Constitution. 

"When  next  we  inquire  as  to  the  purposes,  the 
**  Agent "  of  the  society  which  has  procured  thebe 
laws  to  be  passed,  informs  us  distinctly  that  it  is  "to 
stamp  out  the  free  press."  His  words,  approved  by 
the  society,  are  these — I  read  from  the  last  printed 
report  of  that  society — "  Another  class  of  publica- 
tions issued  by  Freelovers  and  Freethinkers  is  in  a 
fair  way  of  being  stamped  out.  The  public  gener- 
ally can  scarcely  be  aware  of  the  extent  that  blas- 
phemy and  filth  commingled  have  found  vent 
through  these  varied  channels.  Under  a  plausible 
pretense,  men  who  raise  a  howl  about  *  free  press, 
free  speech,'  etc.,  ruthlessly  trample  under  foot  the 
most  sacred  things,  breaking  down  the  altars  of 
religion,  bursting  asunder  the  ties  of  home,  and 
seeking  to  overthrow  every  social  restraint." 

This  purpose,  so  plainly  avowed,  is  well  illustrated 
by  the  seal  of  the  society  on  the  cover  of  their 
"Report,"  in  which  an  author  or  editor  is  pictured 
as  a  miserable  convict  being  shoved  into  a  prison 
cell,  while  the  grand  and  virtuous  "Agent"  is  mak- 
ing a  bonfire  of  his  books.  Is  not  this  a  libel  on 
our  age  and  century?  or  have  the  Dark  Ages 
returned?  Certainly  we  have  here  a  new  Index  and 
Inquisition.  But  if  this  avowal  is  not  enough,  here 
is  a  letter  lately  written  to  the  N.  Y.  Tribune^  in 
which  the  "Agent "  informs  us  that  "  the  work  must 
go  on,"     This  letter  is  a  perfect  picture  of  illiterate 


♦10 


THE  COMSTOCK  LAWS. 


bigotry,  and  of  itself  proves  that  this  "Agent "  is 
the  last  person  who  should  have  been  selected  as  the 
censor  and  inquisitor  of  our  liberties  and  of  the 
American  press,  if  such   an  officer  we  must  have. 

The  danger  of  this  work  by  these  means  and 
purposes  lies  in  their  alleged  goodness,  in  their  being 
represented  as  "  God's  service,"  which  we  have  only 
to  recall  the  doings  ( -f  Torquemada  and  Calvin  to 
remember  is  too  often  but  another  name  for  man's 
woe,  the  more  so,  the  greater  the  sincerity  of  the 
worshipers  and  the  interest  of  their  agents.  That 
the  majority  are  sincere  as  in  the  case  of  this  soci- 
ety only  increases  the  danger.  In  fact,  in  consider- 
ing this  and  all  social  questions,  we  must  ever  bear 
in  mind  the  three  grand  divisions  of  society: 

1.  There  are  the  Retrogrades.  Their  ideal  Eden, 
heaven,  and  hope  for  the  race  is  to  bring  it  back  to 
some  past  state  of  society.  They  are  mostjy  theo- 
logical, and  always  praising  the  past  times  ;  "  lau- 
datores  temporis  actU^ 

2.  The  Conservatives,  who  have  great  enjoyments 
or  interests  at  stake,  and  wish  therefore  to  pre- 
serve the  present  as  long  as  they  can,  and  then  to  go 
up  and  enjoy  it  all  over  again  and  forever  in  a  heaven 
jast  above,  but  not  much  in  advance  of  them. 

3.  The  Liberals,  who  are  generally  poor  or  edu- 
cated, or  both,  and  therefore  often  very  radical  and 
progressive.  Their  heaven  and  ideal  Paradise  is  in 
the  future,  for  which  they  are  always  sacrificing 
themselves  in  the  effort  to  make  the  present  conform 
to  it»    This  effort  accordingly  keeps  them  in  coa- 


THE   COMSTOCK   LAWS.  11 

stant  conflict  with  the  other  two  grand  divisions  of 
society,  who  have  generally  been  in  a  large  major- 
ity, and  whose  self-preservation  it  has  been,  and  is,  to 
stamp  them  out,  or  keep  them  in  a  serviceable  degree 
of  humility. 

Now,  without  recalling  these  divisions,  we  shall 
not  fairly  understand  Mr.  Comstock's  society  nor  the 
Supreme  Court,  nor  the  Constitution  itself.  The 
Constitution  is,  in  fact,  the  first  grand  and  succese.- 
ful  effort  in  government  to  harmonize  these  grand 
divisions.  As  such  it  deserves  ever-increasing  won- 
der and  veneration  as  the  only  plan  by  which  the 
great  antagonistic  classes  of  society  are  practically 
made  to  cooperate  to  the  general  good  of  the  whole. 
The  retrogrades  and  conservatives  always  combine 
and  give  stability  to  the  national  life,  while  the  Lib- 
erals secure  its  progress  and  growth.  The  static 
and  dynamic  powers  of  society  are  thus  each  ustd 
and  provided  for.  The  conservative  classes  give  a 
solid  framework  for  order  in  the  legislation  and  ad- 
ministration, and  then  the  Bill  of  Rights  provides 
guarantees  for  liberty  of  person,  speech,  and  print, 
which  will  permit  growth,  and  so  renew  the  order, 
and  prevent  a  despotism  or  a  Chinese  civilization. 
It  was  indeed  a  great  triumph  of  statesmanship  to 
consolidate  the  States  into  a  Nation  for  general  pur- 
poses, so  that  they  and  their  people  should  preserve 
their  safety  and  liberty  only  the  more  securely  under 
the  general  shield  of  the  Constitution  ;  but  it  was  a 
result  that  the  most  advanced  philosophers  and 
socialists  may  now  wonder  at,  to  find  social  order 
and  progress  practically  reconciled.  To  find  order 
resting  upon  liberty,  which  constantly  renews  and 
enlarges  or^^r  axtph  w^^^.  u  cnn,no  f^fe>ii     :Ls^^.n^.^ 


1.2  THE  GDMSTQCK  LAWS. 

countries,  as  in  France,  for  example,  there  has  been 
little  j^rogress  without  revolution.  The  static  ele- 
ment always  seeks  to  "stamp  out"  the  Liberal* 
until  social  convulsions  result,  with  all  the  outrages 
consequent  upon  repression.  Do  not  think  this  is  an 
idle  dream  or  a  glittering  generality  ;  the  Constitu- 
tion is  its  practical  embodiment.  By  it  the  people 
and  States  join  in  establishing  a  government  to  ad- 
minister certain  special  grants  of  power  for  specified 
objects,  but  all  for  the  general  purpose  of  making 
liberty  the  fundamental  law  of  the  land. 

To  illustrate,  by  coming  to  the  very  point  in  ques- 
tion, there  is  a  grant  among  others,  that  Congress 
shall  have  power  "  to  establish  post-offices  and  post- 
roads,"  and  then  to  this  and  all  similar  special  grants 
there  is  one  of  the  incidental  powers  "  necessary 
and  proper  "  to  execute  them.  (Constitution,  Art.  8, 
§§  7,  and  12.) 

Now  these  are  the  only  words  in  the  Constitution 
on  the  subject  of  the  post-office.  It  is  admitted,  by 
all  to  be  no  general  or  sovereign  grant,  placing  Con- 
gress in  the  position  of  the  British  Parliament.  The 
only  powers  granted  are  such  as  are  necessary,  use- 
ful, or,  as  Chief-Justice  Marshall  said,  "  Appropriate 
to  the  end  "  of  establishing,  that  is,  of  keeping  in  oper- 
ation the  post-offices  and  post-roads.  One  may  well 
be  lost  in  astonishment  at  the  fertility  of  the  con- 
struing faculty  that  can  find  in  these  simple  words 
the  power  for  the  United  States  courts  to  sit  upon 
the  decency  or  the  morality  of  Mr.  Ileywood's  pam- 
phlet, and  to  fine  and  imprison  him,  it  might  be  for 
ten  years,  if  it  is  found  repugnant  to  the  taste  of  the 
presiding  judge.  Ordinarily  small  fines  of  $20  to 
g^mn  ((^xo.f^nt  for  robbery  or  gross  obstruction)  are 


tHE   COMSTOCK   LAWs:  it 

found  sufficient  for  postal  purposes — just  enough 
to  remind  people  of  the  necessities  of  the  service. 
The  framers  of  the  Constitution,  and  those  who 
adopted  it,  were  exceedingly  and  justly  fearful  of 
two  things; — the  granting  of  criminal  jurisdiction  to 
the  general  Government,  and  the  use  of  these  "inci- 
dental "  or  implied  powers.  Congress  was  not  even 
allowed  to  define  the  crime  of  treason  to  the  United 
States,  and  the  special  crimes  they  could  punish  were 
expressly  named,  as  counterfeiting,  felony  on  the 
high  seas,  etc. 

For  all  post-office  purposes  these  implied  powers 
are  easily  ascertained  and  unobjectionable.  But  the 
point  is,  whether  these  implied  powers  can  be  used, 
not  for  any  postal  purpose,  but  as  the  authority  for 
criminal  statutes  of  the  most  terrible  and  yet  indefi- 
nite nature,  to  effect  what  is  supposed  to  be  moral 
purposes.  Can  implied  powers  be  used  for  purposes 
beyond  the  objects  of  the  expressed  power  for  which 
they  were  implied  ?  Can  implied  powers  become  a 
source  of  original  criminal  jurisdiction  outside  of 
the  ends  for  which  they  were  implied  as  necessary  ? 
Can  the  part  exceed  the  whole  ?  The  requirements 
or  "  conveniency  '*  of  the  postal  department  does 
not  need  nor  require  this  extraordinary  power.  The 
post-offices  and  post-roads  have  been  run  for  a  can-  d 
tury  without  thought  that  they  needed  such  powers  • 
or  protection.  The  exclusion  of  matter  lessens  the 
utility  and  income  of  the  department,  and  in  so  far 
frustrates  the  object  of  the  Constitution.  Exclu- 
sion has  therefore  been  made  hitherto  only  on  ac- 
count of  weight  or  injurious  or  dangerous  character 
of  the  articles  excluded,  etc.,  on  the  grounds  of  the 
necessity  or  convenience  of   the  service.     This  ii 


14  THE   COMSTOCK  LAWS. 

evidently  the  only  true  and  constitutional  ground. 
"With  the  meaning  of  the  documents  inclosed  the 
post-office  has  nothing  to  do,  and  if  they  have  not, 
Congress  has  no  authority  to  punish  for  sending 
them.  The  test  of  the  implied  power  is,  that  it 
should  be  necessary  or  proper,  i.  <?.,  useful  and  "  ap- 
propriate to  the  end,"  i.  c,  required  to  effect  the 
object  for  which  it  is  implied,  and  where  this  neces- 
sity ceases  the  power  ceases,  for  it  has  no  ground  to 
stand  upon.  An  implied  power  can  never  be  an 
ulterior  power. 

The  case  is  well  presented  by  Judge  Story  in  his 
work  on  the  Constitution  in  regard  to  the  power  to 
"  establish  post-roads."  Could  Congress  under 
this  clause  construct  through  the  States  vast  systems 
of  roads,  over  which  the  mail  could  be  run,  and  thus 
make  it  authority  for  unlimited  internal  improve- 
ments ?  The  answer  is  plain  :  Congress  cannot  use 
this  power  as  a  pretext  to  construct  internal  im- 
provements, or  to  effect  any  other  ulterior  purpose, 
but  it  may  use  it  when,  where,  and  however  it  may 
be  necessary  or  proper  for  the  object  of  postal  com- 
munication. 

The  meaning  of  mailed  matter  has  nothing  to  do 
with  the  post-office,  nor  that  with  the  meaning. 
There  is  no  nece8f?ity  nor  "  conveniency  "  of  the  ser- 
vice that  is  subserved  by  this  penal  law.  Therefore 
it  has  no  support  in  the  grant  of  the  Constitution, 
and  it  is  a  sheer,  bold,  monstrous  pretext  and  usur- 
pation. 

It  should  be  remembered  that  postal  questions  are 
far  different  in  this  country  from  what  they  are  in 
England,  where  Parliament  can  do  anything  except, 
m  it  is  said,  make  a  man  of  a  woman,  or  a  woman  of 


THE   COMSTOCK   LAWS  15 

a  man  ;  that  is,  physical  impossibility  is  the  only 
limit  of  Parliamentary  power.  There  the  power 
over  the  post-offices  and  people  is  comparatively 
unrestricted.  But  our  general  Government  has  only 
the  special  powers  granted  in  the  Eighth  Article  of 
the  Constitution  and  such  implied  powers  as  "  are 
necessary  and  proper  to  carry  those  special  powers  ^ 
into  effect." 

The  simple  and  single  word  to  "  establish  "  post- 
offices  and  post-roads  was  in  no  wise  intended  to 
grant  to  Congress  the  British  ulterior  power  of 
using  them  after  they  were  established  for  objects 
not  committed  to  Congress  at  alJ,  but  specially 
reserved  to  the  people  of  the  States,  by  Amendments 
9  and  10.  That  no  such  ulterior  power  was  ever 
intended  is  clear  from  history.  One  of  the  greatest 
difficulties  in  procuring  the  adoption  of  the  Consti- 
tution arose  from  the  fear  of  these  implied  powers. 
Every  clause  was  gone  over  and  over  in  the  Conven- 
tion that  framed  the  Constitution,  and  in  the  Con- 
ventions of  the  several  States,  to  discover  how  these 
powers  might  be  wrenched  to  destroy  the  liberties 
of  the  people.  It  is  very  significant  that  no  one 
ever  then  supposed  that  this  power  *'  to  establish  post- 
offices  and  post-roads  "  could  be  other  than  such  as 
should  be  simply  devoted  to  that  end.  Luther  Mar- 
tin and  Patrick  Henry,  who  went  over  every  word 
to  find  objections,  saw  none  in  this  clause,  and  the 
authors  of  the  Federalist  (in  No.  42)  make  their 
only  reference  to  the  subject  in  these  few  words  : 
"The  power  of  establishing  post-roads  must  in 
every  view  be  a  harmless  poicer,  and  may,  perhaps, 
by  judicious  management,  become  productive  of 
great  public  conveniency.     Nothing  which  tends  to 


16  THE   COMSTOCK   LAWS. 

facilitate  the  intercourse  between  the  States  can  be 
deemed  unworthy  of  the  public  care."  This  plainly 
means  that  the  postal  power  must  be  always,  and  in 
every  way  harmless,  since  it  was  only  for  the  public 
"  conveuiency "  of  facilitating  intercourse  between 
the  States.  Little  did  those  patriots  dream  that  a 
hundred  years  thence  a  grant  in  every  point  of  view 
so  harmless,  would  grow  by  construction  of  an  im- 
plied power  into  a  terrible  penal  statute  that  has 
nothing  to  do  with  the  "  conveniency  "  of  the  post- 
office,  or  of  the  people,  or  with  facilitating  their 
intercourse,  but  which  seeks  to  prevent  and  limit  all 
these  for  the  ulterior  object  of  supervising  morality. 
Had  the  possibility  of  this  ulterior  power  been  sus- 
pected then,  the  Constitution  would  never  have  been 
ratified.  Let  any  one  who  doubts  it  turn  over  the 
pages  of  Elliot's  debates  on  the  Constitution  (espe- 
cially the  Virginia  convention),  the  Federalist,  and 
the  second  volume  of  George  Ticknor  Curtis'  "  His^ 
tory  of  the  Constitution." 

Thus,  from  the  words  of  the  grant  and  their  his- 
tory, it  is  clear  that  no  ulterior  power  of  statute- 
making  lurks  in  the  "  establishment "  of  post-offices 
and  post-roads. 

So  this  grant  was  understood  and  executed  as 
"harmless"  until  1836,  when  alleged  attempts  to 
circulate  insurrectionary  matter  among  the  Southern 
slaves  brought  a  message  from  President  Jackson  to 
Congress  on  the  subject  of  excluding  such  matter 
from  the  mails.  Mr.  Calhoun  was  made  Chairman 
of  a  special  committee  in  the  Senate,  and  the  sub- 
ject received  careful  consideration.  He  evidently 
wished  for  the  power  to  exclude  from,  and  to  super- 
vise the  mails  in  the  interest  of  slavery  ;  but  to  his 


THE   COMSTOCK   LAWS.  17 

great  honor,  be  it  said,  he  saw  and  declared  plainly 
that  the  Constitution  did  not  give  Congress  the 
power,  and  he  would  not  claim  it.  The  most  he 
could  ask  was  that  by  the  "  comity  of  nations  "  the 
United  States  would  restrain  postmasters  from  de- 
livering such  matter  in  the  States  which  had  made 
its  circulation  illegal.  The  question  was  discussed 
fully  in  a  Senate  of  unequal  ability,  and  even  this 
limited  restraint  proposed  by  Mr.  Calhoun  was  held 
by  a  vote  of  twenty-five  to  nineteen  to  be  impossi- 
ble under  the  Constitution.  (Con.  Globe,  1836,  pp. 
36,  150,  288,  23V-9,  etc.) 

In  the  debate  Henry  Clay  said  :  "  When  I  saw 
that  the  exercise  of  a  most  extraordinary  and  dan- 
gerous power  had  been  announced  by  the  head  of 
the  post-office,  and  that  it  had  been  sustained  by  the 
President's  message,  I  turned  my  attention  to  the  sub- 
ject and  inquired  whether  it  was  necessary  that  the 
general  Government  should  under  any  circumstances 
exercise  such  a  power,  and  whether  they  possessed 
it.  After  much  reflection,  I  have  come  to  the  con- 
clusion that  they  could  not  pass  any  law  interfering 
with  the  subject  in  any  shape  or  form  whatever. 
The  evil  complained  of  was  the  circulation  of  papers 
having  a  certain  tendency.  The  papers,  unless  cir- 
culated, and  while  in  the  post-office,  could  do  no 
harm  :  it  is  the  circulation  solely — the  taking  out  of 
the  mail  and  the  use  to  be  made  of  them — that  con- 
stitutes the  evil.  Then  it  is  perfectly  competent  to 
the  State  authorities  to  apply  the  remedy.  The 
instant  that  a  prohibited  paper  is  handed  out, 
whether  to  a  citizen  or  to  a  sojourner,  he  is  subject 
to  the  laws  which  compel  him  either  to  surrender  or 
bum  it," 


18  THE   COMSTOCK   LAW& 

Mr.  Clay  then  proceeded  to  demolish  the  claim 
that  Congress  could  legislate  to  carry  into  effect  the 
laws  of  twenty-four  different  States  or  sovereignties, 
and  said  ironically,  "i"  thought  that  the  only  author- 
ity of  Congress  to  pass  laws  was  in  pursuoincc  of  the 
Constitutiony 

To  the  question  of  Senator  Buchanan,  of  Pennsyl- 
vania, to  the  effect  that  the  post-office  power  did 
give  Congress  the  right  to  regulate  what  shall  be 
carried  in  the  mails,  he  replied  in  the  negative,  saying, 
"If  such  a  doctrine  prevailed,  the  Government  may 
designate  the  persons,  or  parties,  or  classes  who  shall 
have   the  benefit  of  the  mails,  excluding  all  others." 

During  the  debate,  one  of  the  safest  of  Senators, 
your  own  "  Honest  John  "  Davis,  said: 

"  It  would  be  claiming  on  the  part  of  Government 
a  monopoly — an  exclusive  right  either  to  send  su»«h 
papers  as  it  pleased  or  to  deny  the  privilege  of 
sending  them  through  the  mail.  Once  establish  the 
precedent,  and  where  will  it  lead  to  ?  The  Govern- 
7nent  may  take  it  into  its  head  to  prohibit  the  trans- 
mission of  political^  religious,  or  even  moral  or  philo- 
sophical puhlications,  in  which  it  might  fancy  there 
was  something  ojfensive  ^  and  under  this  reserved 
right,  contended  for  in  this  report,  it  woidd  be  the 
duty  of  the  Goveriiment  to  carry  it  into  effect.''^ 

The  debate  and  vote  on  this  subject  were  conclu- 
sive. I^'or  even  the  modified  right  claimed  by  Mr. 
Calhoun  few  voted  with  him  but  his  faithful  friends 
of  slavery  from  the  South, — and  James  Buchanan; 
while  with  the  majority  were  the  great  names  of 
the  Senate,  including  Benton,  Clay,  Crittenden, 
Davis,  and — grandest  of  all,  a  name  ever  sacred  in 
this  Hall — Daniel  Webster. 


THE   COMSTOCK  LAWS.  19 

The  debate  was,  as  I  have  said,  conclusive. 
Through  all  the  dark  night  of  the  slave  power, 
through  all  the  dread  necessities  of  the  Rebellion,  if 
the  mails  were  ever  violated,  it  was  without  the 
form  or  countenance  of  law.  The  post-office,  in  law 
and  theory  at  least,  and  I  believe  generally  in  fact, 
has  since  remained  the  common  and  impartial  ser- 
vant and  friend  of  all. 

I  have  cited  this  debate,  and  may  recur  to  it  again, 
for  two  reasons.  First,  because  if  you  look  at  the 
right,  reason,  and  common  sense  of  the  matter,  it  is 
indeed  conclusive;  and,  second,  because  by  one  of  the 
most  astonishing  legal  somersaults  ever  turned,  the 
Supreme  Court  of  the  United  States  has  made  this 
very  debate  bring  out  the  very  opposite  conclusion 
to  which  the  Senator.}  arrived. 

If  we  inquire  how  this  result  has  come,  as  in  the 
case  of  most  of  our  social  evils,  we  must  remember 
the  consequences  of  our  civil  war.  Under  the  war 
powers  of  the  Constitution  the  Government  had  to 
use  incidental  and  implied  powers  to  effect  constitu- 
tional but  extraordinary  ends;  and  so,  through  the 
revenue,  excise,  postal,  income,  and  other  laws,  a  sys- 
tem of  supervision  of  the  people  was  inaugurated, with 
a  network  of  artificial  crimes  and  penalties,  as  tho^vh 
the  Government  could  do  anything  that  seemed  to 
it  expedient.  After  the  war  the  habits  and  prece- 
dents it  induced  have,  to  a  great  extent,  remained. 
In  no  other  way  can  the  extraordinary  mass  of  legis- 
lation that  this  "  Agent's  "  society  has  obtained  from 
Congress,  and  some  of  the  State  legislatures,  be  ac- 
counted for.  These  laws  were,  in  effect,  passed 
surreptitiously.  The  mass  of  the  people  never  heard 
of  them  until  they  were  being  enforced.  They  there- 


20  2BE"  COMSTOCK  EAWJL 

fore  have  no  weight  as  deliberate  laws  of  the  Nation 
or  the   State.     They  are   the  private   laws   of  tho 
society  which   obtained   them  to  be  put  upon  the 
statute  books  without  the  knowledge  of  the  rest  of 
the  community.     In  all  cases  affecting  the  people 
generally,  the  referendum,  or  at  least  public  notice 
and  discussion,  is  necessary  to  make  the  laws  in  any 
proper  sense  the  acts  of  the  people  or  the  nation.   In 
1872  the  society  obtained  from  Congress  an  act  that 
the  tickets  and  circulars  of  illegal  lotteries  should  be 
excluded  from  the  mails  under  a  fine  of  $100  to  $500. 
When  the  power  of  the  society  was  consolidated,  in 
1876,  they  had  the  word  "illegal"  stricken  out  of 
their  statute,  so  as  to  exclude  all  lottery  matter  from 
the  mails,  whether  legal  in  the  States  or  not.  Under 
this  act  A.  Orlando  Jackson  was  induced  by  a  decoy 
letter  of  this  "  Agent,"  under  the  false  name  of  J. 
Ketcham,  to  send  him  a  lottery  circular   by  mail. 
The  agent  thereupon  had  Jackson  arrested,  indicted, 
and  tried  at  New  York,  in  the  U.  S.  District  Court, 
for  sending  a  lottery  circular  through  the  mail.     He 
was  found  guilty,  and  was  fined  $100  and  imprisoned 
until  payment.  To  test  the  law,  his  very  ingenious  and 
able  counsel,  A.  J.  Dittenhoefer,  Esq.,  of  New  York, 
had,  before  the  trial  (there  being  no  appeal  from  the 
decision  on  the  trial),  applied  upon  petition  for  writs 
of  habeas  copus  and  certiorari  to  inquire  into  his  pre- 
liminary imprisonment.    The  petition  was  denied  by 
the   U.  S.   Circuit  Court,  and   so   the  matter  was 
brought   before   the   Supreme  Court  of  the  United 
States. 

Observe  that  the  sole  que^.tion,  aside  from  the 
technical  and  very  doubtful  one  as  to  the  power  to 
issue  the  writs  at  all,  was  as  to  the  legality  of  these 


T&TS   COMSTOCK   LAWS.  2l 

|)ostal  lottery  acts  of  1872  and  1876.  The  ground 
taken  by  the  petitioner's  counsel  wa*  that  Congress 
had  no  grant  of  power  to  pass  the  acts  in  question, 
and  therefore  they  were  unconstitutional  and  void. 
That  was  the  sole  and  only  question  before  the 
court;  all  beyond  the  decision  of  that  question  w^as 
oh  iter  dictum.  The  briefs  of  the  counsel  on  both 
sides  of  the  case,  which  lie  before  me,  present  noth- 
ing further.  The  law  of  1873,  under  which  Mr. 
Heywood  is  imprisoned,  was  not  before  the  court 
nor  argued  at  all,  nor  was  the  effect  of  the  amend- 
ments to  the  Constitution  prohibiting  Congress  from 
passing  any  law  abridging  the  freedom  of  speech  or 
of  the  press,  or  forbidding  the  seizure  of  property 
without  warrant,  upon  either  of  these  laws,  argued 
or  presented  to  the  court  at  all. 

It  was  assumed  by  the  court  without  argument, 
that  lotteries  and  the  "  press  "  must  share  the  same 
fate,  as  though  lotteries  were  the  press,  and  not  busi- 
ness adventures,  and  not  inchided  at  all  under  the 
amendment  of  the  Constitution  securing  freedom  of 
the  press. 

But  let  us  now  look  for  a  few  minutes  at  the  main 
points  in  the  decision  of  the  court.  Mr.  Justice 
Field  of  California  delivered  the  only  opinion  in 
which  the  court  is  supposed  to  concur.  At  the  start 
he  disposes  of  the  main  issue  of  the  case,  the  only 
one  actually  presented  and  argued,  by  a  singular 
assumption.  It  is  this  :  Because  the  validity  of  leg- 
islation regulating  what  should  be  carried  in  the 
mails  as  to  weight  and  form  and  postal  charges,  has 
never  been  questioned,  and  since  such  regulations 
have  varied  from  time  to  time,  therefore  he  infers, 
_!iThe  power  possessed  by  Congress  embraces  t^e^ 


22  THE   COMSTOCK   LAWS. 

regulation  of  the  entire  postal  system  of  the  country. 
The  right  to  designate  what  shall  be  carried  neces- 
sarily involves  the  right  to  determine  what  shall  be 
excluded."  This  begs  the  whole  question  ;  for  it 
assumes  that  matter  has  been  excluded  for  non-postal 
reasons.  Any  argument  from  legislation  and  usage 
is  at  best  of  doubtful  value,  for  time  does  not  justify 
usurpation,  but  to  be  of  any  service  whatever,  it 
must  be  shown  that  the  legislation  and  regulations 
have  covered  ends  beyond  and  ulterior  to  the  pur- 
poses and  ways  and  means  appropriate  to  the  end  of 
establishing  post-offices  and  post-roads.  The  counsel 
for  the  petitioner  claimed  that  for  one  hundred 
years, — from  the  foundation  of  the  Governmoiit  up  to 
the  lottery  laws  in  question,  there  had  been  no  legis- 
lation or  regulations  except  such  as  were  appropriate 
to  the  end,  i.  e.,  to  the  running  and  utility  of  the 
Post-office  Department,  and  that  the  attempt  to  go 
beyond  this  in  3  836  was  found  to  be  unconstitution- 
al in  the  debate  we  have  referred  to,  and  which  he 
presented  to  the  court.  The  learned  Judge  himself 
by  the  instances  of  "weight,"  "  form,"  "  postage," 
etc.,  really  confirms  this,  for  all  such  matters  are 
plainly  appropriate  only  to  postal  ends.  But  he 
argues  because  Congress  has  regulated  as  to  these 
matters  appropriate  to  the  end,  therefore  it  may  do 
so  generally,  and  as  to  matters  that  are  not  appropri- 
ate to  the  end  ;  that  is  to  say,  because  Congress  is 
authorized  to  include  and  has  includer"  certain  arti- 
cles that  conduce  to  the  utility  of  the  service,  there- 
fore it  may  exclude  others  for  reasons  that  have 
nothing  to  do  with  the  service,  but  with  certain 
supposed  moral  and  religious  ends.  The  conclu- 
sion should  be  exactly  the  reverse,  for  usage  can 


THE   COilSTOCK   LAWS.  23 

only  prove  the  legality  of  acts  and  regulations  in 
conformity  with  it,  not  of  those  opposed  to  it.  The 
fact  is  that  the  unbroken  and  unquestioned  usage 
proves,  as  far  as  usage  can,  the  conclusion  directly 
oi")posite  to  the  one  drawn  by  the  learned  Judge. 

In  order  to  sustain  the  conclusion  he  reaches,  laws, 
decisions,  and  regulations,  showing  that  from  the 
adoption  of  the  Constitution  down,  it  had  been  the 
usage  of  the  Government  to  go  beyond  the  necessary 
and  proper  ways  and  means  for  running  the  postal 
department  would  have  been  in  point ;  but  no  such 
laws  or  facts  are  pretended  or  found  by  court  or 
counsel.  From  the  opposite  facts  presented  and 
even  stated  by  the  court,  exactly  the  wrong  conclu- 
sion has  been  drawn.  The  correct  conclusion  is  that 
Congress  has  power  to  exclude  for  postal  purposes 
and  reasons  and  for  no  other.  All  other  exercise  of 
power  of  exclusion  is  a  sheer  usurpation. 

The  learned  Judge  having  thus  disposed  of  the 
counsel  and  his  case  in  the  way  he  should  not,  takes 
the  whole  case  and  more  into  his  own  hands.  He 
does  this  because  the  wrong  conclusion  already 
reached  by  him  brings  him  as  he  intimates  into 
apparent,  and  as  we  think,  into  direct  conflict  with 
the  Bill  of  Rights  of  the  Constitution,  known  as  the 
Ten  Amendments.  How,  for  instance,  can  this  sup- 
posed power  of  Congress  to  exclude  for  non-postal 
purposes  be  reconciled  with  the  clause,  *'  Congress 
shall  make  no  law  .  .  .  abridging  the  freedom 
of  speech  or  of  the  press."  Or,  again,  "  the  right  of 
the  people  to  be  secure  in  their  pe?rsons,  papers,  and 
effects  against  unreasonable  searches  and  seizures 
shall  not  be  violated;  and  no  warrants  shall  issue 
but  upon   probable  cause,   supported  by  oath    or 


24  THE   COMSTOCK   LAWS. 

affirmation,  and  particularly  describing  ne  place  to 
be  searched  and  the  person  or  things  to  be  seized." 

That  the  Constitution  was  never  intended  to  fjive 
the  ulterior  powers  claimed  is  evident  enough  from 
these  and  other  clauses  which  arc  utterly  incon- 
sistent with  them.  The  learned  Judge,  having  by 
reversed  logic  found  these  powers  in  Congress,  finds 
them  to  be  useless  unless  he  can  enforce  them  con- 
sistently with  the  Bill  of  Rights,  "  and  here*'  he  truly 
says,  "the  difficulty  attending  the  subject  arises." 
But  the  same  kind  of  logic  is  pqual  to  the  emerg- 
ency, and  in  this  way  ; — he  finds  rightly  that  sealed 
letters  and  packets  are  prohibited  from  being  opened 
and  searched  while  in  the  mails  ;  also,  that  trans- 
portation and  circulation  of  unsealed  printed  matter 
cannot  be  interfered  with,  for  they  are  essential  to 
the  freedom  of  the  press. 

These  are  sound  and  healthy  premises,  and  we 
expect  the  only  logical  conclusion,  to  wit,  therefore. 
Congress  can  pass  no  laws  excluding  such  matters 
from  the  mails  except  for  postal  reasons,  because 
such  laws  would  abridge  the  freedom  of  the  press 
and  be  void. 

But  again  the  learned  Judge  has  drawn  exactly 
the  wrong  conclusion.  He  says,  "If,  therefore, 
printed  matter  be  excluded  from  the  mail^J,  its  trans- 
portation in  any  other  way  cannot  be  forbidden  by 
Congress." 

It  is  difficult  to  imagine  a  worse  specimen  of  rea- 
soning than  this.  The  "  tJiereforc  "  works  exactly 
the  other  way.  Because  transportation  and  circula- 
tion through  the  mails  are,  as  he  says,  necessary  to 
freedom  of   the  press,   therefore    Congress  cannoS 


TEnS  COMSTOCK  LATfS.  jQ^ 

abridge  them  or  take  them  away.     No  other  confl^ 
sion  is  possible.  ^1^ 

Biitthelcarned  Judge,  to  get  around  his  own  absurd 
conclusion,  adds  that  if  Congress  does  abridge  and 
take  them  away,  then  it  cannot  forbid  the  transpor- 
tation in  any  other  way.  This  only  makes  the  logic 
worse;  it  grants  that  the  exclusion  is  an  "abridge- 
ment" and  then  seeks  to  obviate  that  conclusion  by 
saying  that  Congress  must'nt  take  away  its  trans- 
portation as  merchandise  !  That  is,  the  press,  before 
and  since  the  adoption  of  the  Constitution,  has  cir- 
culated its  "  letters,  newspapers,  and  pamphlets  "  by 
means  of  two  hands — one,  the  mail,  the  other,  as 
freight;  now  says  the  learned  Judge,  Congress  can- 
not pass  any  law  abridging  the  freedom  of  the  press, 
which  is  its  circulation,  but  if  it  does  and  so  cuts  off 
one  of  its  circulating  hands,  it  must  leave  the  other. 
As  though  cutting  off  this  right  hand  was  no  abridge- 
ment !  The  correct  conclusion  is  that  Congress 
cannot  cut  off  either  of  these  hands.  Certainly 
leaving  one  is  no  excuse  for  lopping  off  the  other. 
Every  attempt  to  make  sense  of  this  part  of  the 
opinion  must  be  hopeless.  Shakspere  needed  but  a 
iouch  of  this  reasoning  to  finish  the  character  of 
Dogberry,  and  crown  his  own  genius  as  the  poet  of 
absurdity. 

But  one  step  in  absurdity  not  only  leads  to  an- 
other, but  surely  leads  to  unpleasant  contrast  with 
people  who  are  not  absurd.  And  so  the  learned 
Judge  finds  that  his  singular  logic  brings  him  into  a 
position  of  direct  opposition  to  the  great  jurists  and 
statesmen  who  had  settled  the  question  the  other 
«ray  in  the  Senate  in  1836.  He  brings  all  of  these 
{^eat  men,  however,  apparently  over  to  his  side  by 


26  THE   COMSTOCK   LAWa 

a  legal  somersault  as  absurd,  false,  and  amusing  as 
his  former  conclusions  and  logic.  He  says  it  is  evi- 
dent that  the  views  of  these  great  men  "were  found* 
ed  upon  the  assumption"  that  Congress  had  not  this 
power,  because  the  postal  grant  to  Congress  is  exclu- 
sive, and  enables  Congress  to  prohibit  the  transpor- 
tation of  newspapers  and  pamphlets  over  postal 
roads  by  any  other  way  than  by  the  mails.  Now,  he 
says,  we  will  just  turn  back  on  the  Senators  and 
capture  their  ground  by  making  this  great  court 
hold  just  the  contrary  of  their  assumption.  "We 
don't  think,"  he  says,  "  that  Congress  possesses  the 
power  to  prevent  the  transportation  in  other  ways, 
as  merchandise,  of  matter  which  it  excludes  from 
the  mails."  Now,  first,  this  is  absurdly  irrelevant. 
The  only  question  before  the  Senators  was  as  to 
postal  transportation,  and  that  is  the  only  one  in 
hand  now.  Transportation  "as  merchandise"  is 
entirely  another  affair.  It  belongs  to  commerce, 
which  is  under  the  control  and  regulation  of  Con- 
gress by  another  special  grant.  But  in  the  next 
sentence  the  learned  Judge  grants  the  very  ground 
of  the  Senators,  to  wit,  that  Congress  has  exclusive 
postal  power,  i.  c,  power  "to  put  down  rival  postal 
systems  in  the  carrying  of  letters,  newspapers,  and 
pamphlets."  If,  therefore,  Congress  excludes  such 
matter  from  the  mails,  except  for  postal  reasons,  it 
can  and  does  take  away  the  use  of  the  post-offices 
for  ulterior  reasons,  which  is  the  very  usurpation 
the  Senators  complained  of;  and  also  it  abridges  the 
freedom  of  the  press,  which  it  is  expressly  forbidden 
to  do.  How  absurd  to  say  Congress  may  do  both  of 
these  things  because  it  has  not  restricted  commerce 
in  freights.     Mail  matter  is  sent  under  the  postal 


THE   COMSTOCK   LAW3.  27 

laws  "for  intelligence;"  freights  are  sent  as  mer- 
chandise for  entirely  different  purposes.  News- 
papers, etc.,  "as  merchandise,"  may  affect  the  junk 
dealers,  but  have  nothing  to  do  with  the  freedom  of 
the  press.  Congress  cannot  gain  the  right  to  exer- 
cise ungranted  and  prohibited  powers  under  one 
clause  of  the  Constitution  by  declining  to  exercise  a 
power  which  it  happens  to  have  under  another 
clause.  It  gains  no  power  to  pass  Alien  and  Sedition 
laws  because  it  refrains  from  suspending  the  writ  of 
habeas  corpus.  Yet  one  of  these  is  as  much  related 
to  the  other  as  commerce  is  to  the  postal  grant  and 
service. 

The  learned  Judge  does  not  say,  but  his  argument, 
to  be  good  for  anything,  implies,  that  the  Senators 
denied  the  existence  of  this  ulterior  power  ordy  be- 
cause they  believed  in  this  exclusive  postal  power 
and  did  not  have  the  wit  to  make  this  "  merchan- 
dise" discovery.  We  may  safely  grant  they  did  not 
make  it.  They  were  not  equal  to  its  incoherence. 
It  may  be  regretted  that  it  was  not  mentioned,  for 
it  has  the  flavor  of  an  Irish  "  bull,"  and  would  per- 
haps have  relieved  the  bitterness  of  one  of  the  first 
phases  of  the  great  slavery  struggle. 

But  the  position  which  the  argument  of  the  learn- 
ed Judge  thus  assigns  to  the  Senators  is  not,  in  fact, 
correct.  They  founded  their  conclusion  against  the 
power  of  Congress  to  exclude  for  non-postal  pur- 
poses not  only  upon  the  exclusive  character  of  the 
postal  grant,  but  also,  and  chiefly,  upon  the  grounds 
taken  by  every  sensible  man  since,  to  wit,  that  the 
power  is  not  included  in  any  grant  to  Congress,  and 
would  also  be  a  plain  violation  of  the  Bill  of  Rights. 
The  argument  from  Ihe  exclusive  power  of  Congresi 


28  THE   COMSTOCK   LAWS. 

was  but  one,  and  only  a  minor,  argument,  although 
good  in  their  hands,  as  we  have  shown.  The  ex- 
tracts already  cited  show  that  they  took  deeper  and 
broader  grounds;  and  extracts  confirming  it  could 
be  readily  produced,  from  the  same  debate,  to  great 
length.  Indeed,  Mr.  Calhoun  himself  finally  said 
that  the  claim  for  this  alleged  power  had  been  aban- 
doned by  the  friends  of  the  President. 

Mr.  Davis  said,  he  "  denied  the  right  of  the  Gov- 
ernment to  exercise  a  power  indirectly  which  it 
could  not  exercise  directly ;  and  if  there  was  no 
direct  power  in  the  Constitution,  he  would  like  to 
know  how  they  would  get  the  power  of  the  States — 
a  legislative  power  at  most." 

Mr.  Webster  expressed  himself  as  "  shocked  "  at 
the  unconstitutional  character  of  the  whole  proceed- 
ing, he  said  :  "Any  law  distinguishing  what  shall  or 
shall  not  go  into  the  mails,  founded  on  the  senti- 
ments of  the  paper,  and  making  the  deputy  post- 
master a  Judge,  he  should  say  was  expressly  uncon- 
stitutional." 

He  denied  that  there  was  any  grant  of  such 
power,  and  Mr.  Clay,  as  we  have  seen,  was  emphatic 
on  this  point.  Any  who  doubt  have  but  to  read  that 
debate  in  the  Congressional  Globe  and  Appendix  of 
1836  to  find  that  the  Senators  took  every  ground 
except  the  absurd  merchandise  theory  of  this 
opinion. 

But  lastly,  this  assumption  of  the  learned  Judge  is 
amusingly  absurd  in  its  practical  results.  He  makes 
the  Senators  not  to  have  known  what  they  were 
about  to  little  purpose.  He  would  then  have 
obtained  power  to  exclude  "  the  insurrectionary,"  as 
now  "  the  demoralizing,"  matter  from  the  mails  by 


THE   COMSTOCK   LAWS.  29 

merely  prohibiting  Congress  from  parsing  laws  to 
prevent  its  being  sent  as  merchandise  by  express, 
etc. — and  thus  it  may  be  sent  to  any  extent.  Con- 
gress may  throw  out  of  the  post-office  such  "  objec- 
tionable "  matter  as  it  chooses  on  any  whim  or  fancy, 
but  then,  he  says,  it  cannot  touch  the  same  matter 
expressed  as  merchandise  over  the  same  postal  route. 
But  if  the  same  matter  can  be  carried  by  express, 
why  limit  the  income  and  utility  of  the  post-offices 
by  throwing  it  out  of  them  under  such  terrible  pen- 
alties ?  Why  should  this  simple  difference  between 
postal  matter  and  merchandise  subject  the  sender  to 
ten  years'  imprisonment  ?  Mr.  Calhoun  doubtless 
did  not  think  of  this  stroke  of  statesmanship  ! 

Having  thus  wonderfully  ciphered  out  the  power 
in  Congress  to  pass  these  ulterior  laws,  his  former 
absurdities  bring  the  learned  Judge  to  the  practical 
difficulty  that  they  cannot  after  all  be  enforced  with- 
out manifestly  violating  the  Bill  of  Rights.  He 
undertakes  therefore  to  devise  and  advise  how  it  may 
be  done — information  of  especial  value  to  the  "Agent" 
who  had  the  laws  passed,  and  receives  half  the  fines. 
The  two  ways  especially  sanctioned  by  this  learned 
Judge  are,  the  post-office  decoy  system,  and  the  post- 
office  espionage  system.  Two  plainer  violations  of 
the  Bill  of  Rights,  two  meaner  outrages  upon  lib- 
erty, decency,  and  morality,  have  never  been  perpe- 
trated among  our  people.  The  learned  Judge  did 
not  invent  them.  They  are  old  instruments  of 
the  Christian  Inquisition,  but  the  "Agent "  under 
these  laws  was  the  first  to  introduce  them  as  modes 
of  administration  of  our  Constitution,  and  the  learned 
Judge  is  the  first  in  this  country  to  throw  over  them 
the  benignant  smile  of  judicial  approval.    I'his  he 


80  THE   COMSTOCK   LAWa 

does  in  a  very  smooth  and  graceful  way.  He  admita 
that  it  would  not  do  to  examine,  without  warrant, 
into  "  letters  and  sealed  packages  "  in  the  search  for 
prohibited  matter,  but  he  says  these  regulations  "may 
be  enforcedupon  competent  evidence  obtained  in  other 
ways,  as  from  the  parties  receiving  the  letters  or 
packages,  or  from  agents  depositing  them  in  the 
post-office,  or  others  cognizant  of  the  facts."  "  And 
as  to  *  objectionable  '  printed  matter,  which  is  open 
to  examination,  the  regulations  may  be  enforced  in 
a  similar  way,  .  .  .  and  in  some  cases  by  the 
direct  action  of  the  officers  of  the  postal  service.  In 
many  instances  those  officers  can  act  npon  their  own 
inspection^  and  from  the  nature  of  the  case,  must  act 
without  other  proof,  as  where  the  postage  is  not  pre- 
paid, or  where  there  is  an  excess  of  weight  over  the 
amount  prescribed,  or  where  the  object  is  exposed 
and  shows  unmistakably  that  it  is  prohibited,  as  in 
the  case  of  an  obscene  picture  or  print.  In  such 
cases,  no  difficulty  arises,  and  no  principle  is  violat- 
ed, in  excluding  the  prohibited  articles  or  refusing 
to  forward  them.  The  evidence  respecting  them  is 
seen  by  every  one  and  is  in  its  nature  conclusive." 

The  "Agent,"  who  is  also  the  special  post-office 
agent  of  the  Government  under  this  law  and  decis- 
ion, operates  a  decoy  system  in  this  way  :  He  sends 
letters  of  apparent  approval  for  any  article,  paper, 
circular,  or  advertisement,  and  when  received  by  mail 
if  he  thinks  it  is  "  objectionable,"  although  the  letter 
or  packet  was  sealed,  he  has  his  correspondent  arrest- 
ed and  locked  up,  and  if  it  is  a  lottery  circular,  or 
"offensive  to  the  decency"  of  the  United  States 
District  Judge  before  whom  the  "Agent"  brings 
the    case,    he    as    judge    of    the    law    practically 


THE  COMSTOCK  LAWS.  81 

orders  a  verdict  of  guilty,  and  may  send  the  victim 
to  prison  for  ten  years,  with  a  fine  of  $5,000,  and 
there  is  no  appeal  whatever  provided  in  such  cases, 
and  one-half  of  the  fine  goes  to  the  Agent  "  who  put 
up  the  job." 

Or  again,  if  you  send  any  newspaper  or  printed 
matter,  the  case  is  worse,  for  in  addition  to  the  decoy 
system,  this  special  agent,  or  any  other  "  officer  of 
the  postal  service,"  instead  of  being  limited  in  his 
postal  duty  to  seeing  that  th^  weight  and  postage  is 
correct,  and  that  it  does  not  contain  matter  subject 
to  letter  postage,  has  also  imposed  upon  him  the 
moral  duty  of  censor  of  the  press,  that  is,  he  is, 
"  upon  his  own  inspection,"  to  sec  that  the  printed 
matter  is  not  objectionable,  "  as  in  case  of  obscene 
picture  or  print "  or  in  cases  of  lottery  circulars,  etc., 
etc.,  and  if  he  finds  that  it  is  "  objectionable,"  then 
"  no  principle  is  violated"  in  his  "  excluding  the  pro- 
hibited articles,  or  refusing  to  forward  them."  But 
suppose  you  do  not  know  or  believe  the  matter  you 
may  have  thus  sent  is  "  objectionable,"  and  so  you 
go  innocently  to  inquire  why  it  has  not  gone  to  its 
destination  ?  Then  the  "Agent  "  is  waiting  for  you, 
arrests  you  at  once;  there  is  no  certainty  that  the 
delicate  "  decency  "  of  a  U.  S.  District  Judge  may 
not  be  offended  ;  then  you  may  go  to  prison  for  ten 
years,  under  a  fine  of  $5,000,  and  the  "Agent "  is  re- 
warded for  his  diligence  by  half  the  fine,  and  you 
have  no  appeal. 

This  is  the  kind  of  work  that  was  done  in  the 
cases  of  Lant,  Jackson,  Hey  wood,  and  others  I  could 
name;  and  the  "Agent  "  is  waiting  for  your  indig- 
nation to  subside  to  push  on  "  the  work  "  of  "  stamp- 


S2  THE   COMSTOCK   LAWS. 

ing  out "  the  free  press  under  tne  approval  of  the 
highest  court  in  the  land  ! 

If  laws  that  have  these  results  do  not  "  abridge 
the  freedom  of  speech  and  of  the  press  "  how  can  it 
be  done?  How  "secure"  you  are  in  your  letters, 
papers,  and  effects,  when  you  entrust  them  to  the 
"  officers  of  the  postal  service  "  to  find  that  they  are 
stopped  without  warrant,  or  taken  out  as  a  decoy  oi* 
trap  to  get  you  into  States  Prison  by  use  of  them  as 
evidence,  and  to  enable  the  informing  agent  to  get 
half  of  any  imposed  fine  !  Under  this  decision  the 
pretense  of  safety  of  papers  and  liberty  of  circulating 
are  worse  than  vain.  The  very  muniments  of  personal 
liberty  are  a  snare  and  a  delusion,  for  they  are  turned 
into  instruments  for  its  destruction.  The  story  is 
that  the  garrison  who  surrendered  to  a  Turkish 
Pasha  were  solemnly  assured  by  him  that  not  a  drop 
of  their  blood  should  be  shed.  After  the  surrender 
he  immediately  ordered  every  one  of  them  to  be 
hung,  and  so  kept  his  promise  to  the  very  letter. 
What  morality  is  it  that  induces  a  Judge  of  the 
Supreme  Court  to  keep  the  precious  guarantees  of  the 
Bill  of  Rights  in  the  same  way  ? 

Yet  it  is  in  the  name  of  "  public  morals  "  that  this 
result  is  reached.  He  concludes  by  the  consoling 
assertion  that  "  the  object  of  Congress  has  not  been 
to  interfere  with  the  freedom  of  the  press,  or  with 
any  other  right,  but  to  refuse  mail  facilities  for  the 
distribution  of  matter  deemed  *  injurious  to  the 
public  morals.' "  Then  for  the  first  time  the  hitherto 
undisclosed  reason  for  going  beyond  the  issue  pre- 
sented by  counsel  and  the  case — the  motive  for  this 
long  obiter  dictum — appears  ;  the  learned  Judge  at 
last  by  force  drags  in  the  act  of  March  3,  18V3,  the 


THE   COMSTOCK   LAWS.  83 

one  under  which  Mr.  Hey  wood  was  convicted,  and 
renders  it  constitutional  as  far  as  his  word  can  do 
it  by  way  of  illustration,  without  its  being  in  issue 
before  the  court  or  the  subject  of  argument.  To  do 
this  he  quotes  the  main  section  of  the  law  of  1873, 
and  then  settles  the  whole  matter  in  two  sentences, 
which  when  we  consider  the  importance  of  the  con- 
sequences, fill  us  with  astonishment.     lie  says: 

"All  that  Congress  meant  by  this  act  was,  that 
the  mail  should  not  be  used  to  transport  such  cor- 
rupting publications  and  articles,  and  that  any  one 
who  attempted  to  use  it  for  that  purpose  should  be 
punished.  The  same  inhibition  has  been  extended 
to  circulars  concerning  lotteries — institutions  which 
are  supposed  to  have  a  demoralizing  influence  upon 
the  people." 

All  the  learned  pretense  of  "  reasons  "  is  here  swept 
away.  It  is  at  last  plainly  avowed  and  averred  that 
Congress  has  the  power  to  exclude,  and  to  run  the 
post-office  for  moral  and  ulterior  grounds,  and  for 
and  on  those  grounds  only  to  punish  with  any  penal- 
ty it  may  naxie,  even  of  life,  any  attempt  to  send 
any  thing  or  publication  through  the  mail  that  it 
may  "  deem "  or  "  suppose "  to  be  "  injurious  to 
public  morals  "  or  of  "  demoralizing  influence." 

As  our  President  said  here  to-night,  if  this  is  the 
law,  the  Constitutional  Bill  of  Rights  is  not  worth 
"  two  brass  buttons,"  nor  one.  "All  that  Congress 
may  mean "  by  any  other  act  will  be  to  exclude 
"libelous  and  seditious"  publications,  as  under  the 
Sedition  Law,  or  "  incendiary  and  insurrectionary  " 
publications,"  as  under  Mr.  Calhoun's  law,  or,  as  soon 
may  be  the  case,  all  "  revolutionary,"  "  communistic," 
"socialistic,"  "destructive,"    "riotous,"   "blasphe- 


84  THE   COMSTOCK  LAWS. 

mous,"  "irreligious,"  etc.,  etc.,  articles  and  publica- 
tions, just  as,  in  its  unlimited  power  and  wisdom,  it 
may  at  any  time  ordain,  with  penalties  of  line  and 
imprisonment,  or  of  life  and  death.  And  yet  all  this 
will  have  nothing  to  do  with  the  freedom  of  the 
press  or  the  liberties  of  the  citizen!  If  you  examine 
you  will  find  that  the  First,  Fourth,  Fifth,  Eighth, 
Ninth,  and  Tenth,  which  are  the  main  Articles — the 
very  substance  —  of  the  Constitutional  Bill  of 
Rights,  are  violated  by  these  laws  and  this  decision, 
and  that  if  they  are  to  stand,  this  Bill  of  Rights  is 
not  worth  the  paper  upon  which  it  is  piinted. 

But  not  only  is  the  Constitution  and  freedom  of 
the  press  and  people  overthrown  by  these  laws  and 
this  decision;  the  United  States  courts  receive 
thereby  an  unconstitutional,  dangerous,  and  most 
indefinite  enlargement  of  their  criminal  jurisdiction. 
The  case  of  Mr,  lley  wood  ought  to  bring  this  danger 
home  to  you.  Our  fathers  feared  nothing  more  than 
this.  The  United  States  courts  were  regarded  by 
them  as,  in  fact,  what  they  are — foreign  tribunals  to 
the  mass  of  the  people.  The  judges  sit  for  life, 
without  responsibility  to  the  people  ;  few  lawyers 
know  the  practice  ;  the  juries  are  so  selected  that 
they  are  "  packed  "  in  effect  if  not  by  design.  The 
districts  are  so  large  that  even  in  the  same  State  the 
accused  rarely  has  a  "  jury  of  his  peers  or  vicinage;" 
and,  most  surprising  of  all,  in  this  criminal  class  of 
cases  there  is  no  appeal  whatever  !  Think  of  one 
fallible  man,  under  the  most  indefinite  of  laws,  with 
the  absolute  power  of  fine  and  imprisonment,  and 
even,  in  some  cases,  of  life  and  death,  in  his  hands, 
and  no  appeal!  As  those  who  were  present  at  the 
trial  and  sentence  of  Mr.  Heywood  describe  the  out- 


THE   COMSTOCK   LAWS.  55 

rage,  it  reminds  me  of  one  of  Judge  Jeftrej^'s  trials, 
and  illustrates  well  the  dangers  to  which  I  refer. 
The  Judge  decided  practically  the  law  and  fact;  and 
when  the  jury  hesitated,  he  wrung  a  verdict  from 
them  by  a  charge  "in  a  roaring  passion."  Two 
judges  sat  and  gave  the  victim  "a  double  dose"  be- 
cause he  had  not  promised  to  give  up  his  constitu- 
tional right  to  send  his  pamphlet  "  as  merchandise," 
and  would  not  repent  of  having  sent  it  at  all — thus 
acting,  not  even  as  officers  of  this  infamous  law,  but 

beyond  it  and  as  executioners  and  "confessors"  of 

* 
the  new  Inquisition.     As  Jefferson  and  Henry  and 

Luther  Martin  said,  *  The  United  States  will  be  con- 
stantly gaining  power  by  construction  and  the 
people  constantly  losing: ; — judge  you  in  which  way 
the  balance  will  run.  Where  an  inch  is  given  an  ell 
will  be  taken.'  The  lesson  is  that  if  you  would  not 
have  Liberty  leave  you  she  must  be  guarded  in  her 
home  among  the  States  and  people,  and  not  be  trust- 
ed out  to  United  States  judges  and  officials. 

"But  what,"  says  the  "Agent,"  like  another 
"  Statesman"  of  New  York,  who  stole  our  money — a 
trivial  matter  to  our  liberties — "what  are  you  going 
to  do  about  it?  I  have  the  law  and  the  courts,  and 
the  Supreme  Court  itself." 

What  w^e  do^  will  depend  upon  what  we  are.  If 
unworthy  of  our  liberties,  we  shall  lose  them;  if  we 
rise  to  the  height  of  the  issue,  we  shall  place  them 
upon  a  firmer  foundation  than  ever.  Do  not  be 
appalled  because  the  Supreme  Court  is  against  us; 
that  may  be  the  very  condition  of  success.  "  Two 
things  you  can  do  when  you  are  beaten,"  said  a 
famous  New  York  judge  to  a  young  lawyer;  "  one 
is  to  appeal ;  the  other  is  to  go  down  to  the  tavern 


86  THE   COMSTOCK   LAWS. 

and  abuse  the  judge."  But  in  the  Supreme  Court 
we  are  told  there  is  no  appeal,  and  so  Fancuil  Hall 
has  been  kindly  granted  to  us  by  your  Comraon 
Council  instead  of  the  tavern. — Think  a  moment  1  is 
there  no  appeal  ?  In  all  great  cases  in  a  republic,  in 
all  cases  touching  the  rights  and  liberties  of  the  peo- 
ple, who  are  the  final  judges  of  the  law  and  the  fact? 
Plainly  the  people  themselves!  The  Supreme  Court, 
being  always  retrograde  and  conservative,  is  almost 
sure  to  get  on  the  wrong  side  whenever  issues  of 
liberty  and  progress  are  presented.  They  go  for  the 
old  and  for  poicer^  the  people  go  for  the  new  and 
for  liberty,  and  in  such  cases  they  and  their  govern- 
ment have  never  failed  to  reverse  the  court.  The 
decisions  of  the  Supreme  Court  of  the  United  States 
upon  questions  of  popular  rights  and  liberties  are 
the  Apocrypha  of  our  constitutional  law.  The  re- 
versal of  them  has  almost  become  a  rule.  Let  me 
recall  a  few  prominent  cases  none  can  forget. 

John  C.  Calhoun  said  that  up  to  his  day  "only  one 
great  constitutional  question  had  been  settled,  to 
wit,  the  unconstitutionality  of  the  Alien  and  Sedition 
laws,  and  that  question  had  been  settled  *  against 
the  Supreme  Court.'  "  Judge  Story  sought  to  parry 
this  thrust  by  showing  that  these  laws  were  never 
really  before  the  court.  True;  the  Kepublicans 
knew  enough  to  keep  them  out  of  that  court,  and 
thus  to  avoid  an  adverse  decision;  for  decisions 
were,  in  fact,  rendered  in  favor  of  those  laws  in 
every  other  Federal  court. 

Then  came  the  question  of  the  United  States 
Bank.  Andrew  Jackson  said,  when  the  decision 
sustaining  the  constitutionality  of  the  United  States 
Bank  came,  "Now  Marshall  has  made  his  decision. 


THE   COilSTOCK   LAWS.  87 

let  him  enforce  it.'*  The  people  sustained  "Old 
Hickory."  The  country  was  saved  from  ihe  domin- 
ion of  a  moneyed  aristocracy,  and  the  court's  decis- 
ion took  its  place  in  the  Apocrypha  wilh  the  Sedition 
La^^'. 

Then  came  the  slavery  agitation.  If  this  question 
of  *'  insurrectionary  matter"  in  the  mails  had  come 
before  the  Supreme  Court  then,  there  is  little  doubt 
but  that  it  would  have  registered  the  will  of  the 
controlling  slave  power. 

Of  the  constitutionality  of  the  Fugitive  Slave  law 
and  of  all  of  its  infamous  details  "  the  court  had  no 
doubt."  Then  the  Drcd  Scott  decision — who  can 
forget  ? 

Then  the  habeas  corpus  decisions  ngainst  Lincoln 
and  the  war  power  of  the  Constitution;  only  by  dis- 
regard of  which  decisions  the  Nation  lives. 

Then  came  the  first  legal-tender  decision,  when 
General  Grant,  who  had  saved  us  from  the  rebellion, 
lost  all  patience  and  had  to  save  us  from  this  court 
by  taking  off  two  judges  bodily,  and  putting  others 
there  who  could  see  that  the  war-contracts  of  the 
Nation  were  constitutional  and  had  to  be  kept. 

And  now,  at  last,  comes  this  Jackson-lottery-postal 
case — in  many  respects  the  most  insidious  and  dan- 
gerous of  them  all. 

What  shall  be  done  about  it  ?  The  decisions  of 
this  court  always,  of  course,  settle  the  cases  decided 
as  to  the  litigants.  It  is  settled,  for  instance,  that 
Jackson  had  to  pay  his  fine  to  get  out  of  jail.  I3ut 
that  is  all — unless  the  people  choose  to  let  it  settle 
more.  The  Supreme  Court  is  a  final  kgcd  tribunal 
in  the  cases  before  it,  but  not  a  final  social,  political, 
and»  above  ^1,  not  a  theological,  religious,  or  moral 


88  THE   COMSTOCK   LAWa 

tribunal.  It  settled  that  Dred  Scott  was  a  slave, 
but  the  people  thereupon  decided  that  every  other 
Dred  Scott  should  be  free.  That  the  post-ofHces  are 
decoy  traps  and  under  the  "moral"  espionage  of 
the  officials  is  the  sum  of  this  decision.  The  people 
may  demand  that  the  post-offices  must  be  free,  equal, 
and  safe  to  all;  if  we  have  the  courage  of  the  issue, 
they  will  so  demand.  Remember  that  every  great 
and  successful  party  in  this  country  has  had  the 
adverse  decision  of  the  Supreme  Court  of  the  United 
States  as  its  very  corner-stone.  Thus,  the  Republi- 
can party  of  Jefferson  rested  upon  the  Alien  and 
Sedition  Law  decisions;  and  the  only  regi'et  that 
lingers  around  the  memory  of  your  noble  John  Ad- 
ams, whose  bust  stands  behind  me,  is  that  he  did  not 
trust  the  people;  that  he  assented  to  this  law — for 
he  never  approved  it. 

Then  the  great  Democratic  party  of  Jackson  was 
founded  upon  opposition  to  the  abuse  of  implied 
powers,  which  culminated  in  the  famous  United 
States  Bank  decision. 

Then  the  Republican  party  of  Lincoln; — that  was 
really  founded  by  the  adverse  Fugitive  Slave  law 
and  Dred  Scott  decisions  of  this  very  court. 

Now  we  have  the  decision  that  may  found  another 
party.  How  far  Liberalism  is  to  become  a  political 
power  in  this  country  will  depend  upon  the  delay  of 
Congress  in  repealing  this  law.  I  hope  it  may  never 
become  a  political  party  at  all.  I  dislike  the  thought 
of  moral  or  religious  political  issues.  Let  all  rea- 
sonable, moral,  and  persuasive  means  by  petition  and 
otherwise,  be  used  first ;  but  if  that  is  unavailing, 
let  every  Congressman  know  that  he  has  a  new 
source  of  danger  at  the  polls.     The  Liberal  party  is 


THE  COMSTOCK   LAWS.  89 

youDg  now,  just  beginning  to  see  that  it  has  a  call 
to  become  organized  for  protective,  social,  and  relig- 
ious purposes.  But,  young  as  it  is,  it  must  meet  this 
issue  with  a  decided  prote8t^  a  protest  that  will 
keep  this  infamous  decision  from  ever  becoming  the 
*  law  of  the  land  '  any  more  than  those  I  have  named. 
It  is  the  only  party  that  has  the  will  or  the  courage 
to  meet  this  question.  The  others  will  lie  supinely 
by  and  be  bulldozed  out  of  their  liberties  by  the  cry 
of  obscenity.  The  real  growing  end,  the  priceless 
new  life  of  the  nation  and  of  the  people,  falls  to  its 
care  and  charge,  and  that  too  at  a  period  of  our 
country's  history  when  nothing  can  be  more  danger- 
ous than  repression,  when  repression  will  be  but  an- 
other name  for  revolution. 

The  real  Constitution  of  the  countrj^  is  this  new 
life,  this  liberty,  out  of  which  the  written  Constitu- 
tion grew,  and  a  new  and  improved  order  is  to  grow. 
That  liberty  is  the  priceless  treasure  that  Patrick 
Henry  was  so  afraid  to  commit  to  a  federal  power 
that  might  become  a  federal  tyrant.  *  The  spirit  of 
liberty,  and  the  maxims  of  liberty — they  are  the 
true  Constitution  of  the  American  people,'  he  con- 
tinued to  repeat,  with  a  wisdom  that  De  Lolrae  and 
Mackintosh  and  more  recent  political  philosophers 
have  now  more  fully  disclosed.  *' Constitutions 
grow,  and  are  not  made,"  they  tell  us.  They  are  not 
dead  pieces  of  parchment,  but  living  organizations 
that  enlarge  with  the  people  because  they  are  the 
living  skeletons  of  their  life.  They  g-ow  by  con- 
stant construction.  All  great  questions  of  liberty 
and  government  are  with  us,  therefore,  questions  of 
constitutional  construction,  too  great  to  be  decided 
by  any  court.     Every  decLiiou  against  the  "  Ameri- 


40  '  THE   COMSTOCK  LAWS. 

can  spirit"  that  Patrick  Henry  invoked  has  been 
overruled. 

And  now  the  deepest  question  of  all  is  touched — 
the  liberty  that  is  the  heart  of  the  living  social  or- 
ganism—  the  birthright  secured  to  us  in  the  li.U  of 
Rights  by  Massachusetts  and  Patrick  Henry  and 
Jetferson,  as  the  very  condition  of  accepting  the 
written  Constitution  at  all,  is  to  be  stricken  out. 
Will  you  submit  to  this  ?  If  you  acquiesce,  the  Ret- 
rogrades and  Conservatives  will  have  full  pov/er  and 
control  of  both  Government  and  people  henceforth. 
The  only  protection  for  the  Liberal  minority,  who 
are  the  new  growing  and  precious  life,  upon  which, 
as  in  a  plant,  the  whole  progress  of  our  national  and 
social  progress  depends,will  be  gone  forever.  While, 
therefore,  ycu  have  voice  or  vote,  unceasingly  let 
them  be  raised  for  the  repeal  of  this  law,  in  protest 
against  this  stupid  decision,  and  in  assurance  that 
the  people  will  acquiesce  in  it  as  'the  law  of  the 
land,'  never,  never,  never! 

But  in  our  indignation  let  us  not  be  unjust  to  the 
order  that  the  written  Constitution  ordains  and  sus- 
tains. Liberty,  progress,  and  order  are  all  harmoni- 
ous in  a  democatic  republic,  and  must  sustain  each 
ot'ier.  While  we  criticise  with  utmost  freedom  the 
de'-*i^ions  of  our  highest  court,  we  shall  not  forget  its 
ni'ces>ity  or 'its  great  service^*  as  a  great  legal  tribu- 
nal. L.  t  no  one  suppose  that  the  opinion  we  have 
just  reviewed  is  a  specimen  of  its  statesmanship  or 
re:x>oning.  That  is  not  a  legal,  but  a  moral  and  re- 
ligious decision;  and  under  a  "religious  duress" 
wiio  is  responsible?  Where  the  giant  Superstition 
throws  his  shadow  the  powers  of  the  mind  are  para- 
lyzed and  even  reversed.     Pascal  was  prostrate  be- 


THE  COMSTOCK   LAWS.  41 

fore  the  cross.  "The  mighty  intellect  of  New- 
ton" stood  before  the  "  Prophecies  "  like  that  of  a 
rain-maker  before  his  fetich.  Thas  tuch  an  opinion 
could  have  been  "  handed  down  "  from  the  highest 
court  in  our  land  proves,  as  nothing  else  could,  the 
necessity  of  a  Liberal  sect  and  party  in  America. 

The  trouble  with  these  Judges  and  the  '*  Society  " 
they  are  sustaining  is  that  they  are  conservatives, 
and  also  at  heart  Infidels.  They  have  no  faith  in 
the  integrity  of  the  Universe,  or  the  goodness  of 
Man.  The  one  is  subject  to  miracles — the  other  to 
total  depravity.  The  laws  of  the  first  may  be  set 
aside  any  moment  by  their  God,  and  if  man  is  not 
controlled  by  the  "  Agents  "  of  the  same  God,  if  a 
free  press  and  a  free  speech  are  really  allowed,  then 
those  who  enjoy  them  will  "  ruthlessly  trample  under 
foot  the  most  sacred  things,  breaking  down  the 
altars  of  religion,  bursting  asunder  the  ties  of  home, 
and  seeking  to  overthrow  every  social  restraint."  So 
it  seems  to  them,  and  they  have  given  us  a  decision 
from  the  fears  of  their  hearts  instead  of  from  the 
clearness  of  their  judicial  heads.  Mr.  Justice  Strong 
even  wishes  to  put  God  into  the  Constitution  The 
People  are  not  enough  for  it  to  rest  upon. 

"  Oh  ye  of  little  faith,"  the  laws  that  mould  "  the 
lillies  as  they  grow  "  prevail,  too,  through  the  human 
world.  The  religions,  and  the  altars,  and  the  ties, 
that  need  to  be  preserved  by  "  restraints  "  of  uncon- 
stitutional laws  and  decisions  are  condemned  by  that 
fact  as  "superstitions."  The  struggle  you  are 
opposing  is  really  the  effort  of  human  nature  to  rise 
to  a  newer,  purer,  and  truer  social  state — to  a  relig- 
ion so  consonant  to  human  nature  that  it  will  be  a 
duty  and  not  a  restraint — to  an  altar  not  red  with 


42  THE   COMSTOCK   LAWS. 

the  blood  of  sacrifice,  but  loaded  with  the  gifts  of 
gratitude  to  Humanity  for  liberty  and  welfare 
achieved. 

What  is  profanity  and  obscenity  anyway  but  the 
corruption  and  disintegration  of  theology?  It  is 
only  depraved  theologians  who  misuse  theological 
names,  and  turn  purity  into  obscenity  in  word  and 
deed.  Liberty,  knowledge,  truth,  and  health  will 
scatter  both  as  the  pure  breeze  clears  the  nois'ome 
air.  To  purify  the  fountain,  do  not  break  or  ob- 
struct it,  but  let  the  waters  run  fresh  and  clear. 

Thus  we  find  that  this  unconstitutional  espionage- 
law  is  also  impolitic  and  injurious  to  morals.  Its 
repeal  is  justly  called  for  upon  both  grounds  in  the 
petition  referred  to.  A  post-office  regulation  that  all 
matter  should  be  inclosed,  and  that  postal  cards 
should  contain  nothing  that  could  be  offensive  to 
those  to  whom  they  are  sent  or  to  the  public,  is  all 
that  is  necessary.  This  matter  of  the  j»ostal-cards 
is  entirely  in  the  power  "of  the  department  as  a 
necessary  postal  regulation.  It  is  evidently  inserted 
in  the  law  in  question  only  to  give  it  the  color  of 
necessity.  If  it  is  thought  best  to  retain  the  form  of 
the  law,  it  should  be  materially  modified  so  as  to  be 
within  the  postal  powers  and  purposes  only. 

This  suggests  the  last  point  I  shall  touch,  that  is, 
public  protection  from  actual  obscenity.  That  is  a 
matter  reserved  by  the  Constitution  to  "the  People 
and  the  States,"  as  Mr.  Clay  said  as  to  incendiary 
matter,  and  they  have  only  to  do  their  duty.  The 
price  of  purity,  as  of  libert}^,  is  eternal  vigilance, 
and  no  law  can  remove  the  necessity  of  its  exercise. 
The  principal  trouble  is  said  to  be  with  children  and 
schools.     The  remedy  is   the  power  and  thq  duty 


THE   COMSTOCK   LAWS.  43 

which  the  common  law  gives  to  and  imposes  upon 
parents,  guardians,  and  teachers,  to  see  to  it  that 
they  know  what  their  children  and  wards  read.  A 
word  to  the  postmaster  to  deliver  printed  matter 
sent  to  them  to  the  legal  guardian,  so  that  he  can 
distribute  it,  is  all  that  is  necessary.  If  tried,  I  do 
not  think  that  much  obscene  matter  will  ever  come. 
Instead  of  it  will  probably  be  found  dime  novels, 
sensational  novels,  and  boys'  and  girls'  newspapers, 
and  Sunday-school  trash — all  as  "  corrupting,"  "  de- 
moralizing," and  dangerous,  in  fact  and  effect,  as 
any  obscenity.  As  to  grown  people,  and  public  de- 
cency, the  matter  will  be  taken  care  of,  as  now,  by 
the  State  and  municipal  regulations.  You  have 
long-standing  and  sufficient  laws  on  the  whole  sub- 
ject in  Massachusetts;  and  if  Mr.  Ileywood  had 
been  found  guilty  under  them,  I  should  have  left 
the  matter  to  you,  as  her  citizens.  I  should  never 
have  come  here  to  enter  a  protest.  But  the  case 
is  far  different  when  a  citizen  of  New  York  comes 
here  and  arrests  and  convicts  under  a  law  of  the 
United  States  and  by  their  pretense  of  authority. 
Where  he  goes  for  such  purposes,  I  felt  it  a  duty,  at 
no  little  sacrifice,  to  follow  and  protest.  With  what 
use  and  effect  this  protest  has  been  made  you  must 
determine.  The  net  of  legal  precedents  woven  for 
others  will  be  woven  for  you.  The  birthright  of 
American  liberty,  it  is  the  tradition  of  this  Hall 
that  you  will  protect.  The  Past  has  made  it  your 
duty.  If  that  birthright  is  sold  or  lost,  for  any 
object  or  upon  any  pretense,  however  moral  or  spe- 
cious, the  fact  iSy  it  will  be  gone  ;  and  when,  Esau- 
like, you  seek  it,  after  many  days  in  need,  and  even 
with  '*  sorrowing  and  tears,"  you  shall  find  it  not ! 


44  THE  COMSTOCK  LAWS. 

TO  rREEDOM. 

0  Freedom  !    Thou  art  not,  as  poets  dream, 

A  f  vir  young  girl,  with  light  and  delicate  limbs, 

Ad  w.ivy  tresses  gushing  from  the  cap 

With  which  the  R  >man  master  crovvned  his  slav* 

"Whca  he  took  off  the  gyves.     A  bearded  man, 

Armed  to  tbe  teeth,  art  thou  ;  one  mailed  hand 

Gra-ps  the  broad  shield,  and  one  the  sword  ;  thy  brow," 

G  oi  ious  in  bea  ity  though  it  be,  is  scarred 

With  loljeDS  of  old  wars  ;  thy  massive  limba  .' 

Are  strong  with  s'lugg-itig.     .     .     . 

.     .     .     .     Tyraany  himself, 

Tby  oneray,  although  of  reverend  look, 

Hoary  with  m=^ny  years,  and  far  obeyed. 

Is  liitr  born  ihaa  luoa  ;  and  as  he  meets 

The  grave  defiance  of  thine  elder  eye, 

The  usurper  trembles  in  his  fastnesses. 

Thou  Shalt  wax  stronger  with  the  lapse  of  years. 
Bat  he  shall  fade  iato  a  feebler  age- 
Feebler,  yet  subtler.     lie  shall  iceave  his  snares^ 
And  Sj-ruifj  iJiem  on  thy  careless  si-^ps,  and  clip 
Ula  loitlKred  hands,  and  from  their  ambush  call 
Ilii  hordes  tjfall  upon  thee.     He  shall  send 
Quaint  ma-kers,  iveariag  fair  and  gallant  forms 

1  o  c  itch  thy  gaz?,  and,  uttering  graceful  words, 
To  charm  iby  ear  ;  while  his  sly  imps,  by  stealthy 
Twine  round  thee  thread  f  of  steel,  light  thread  on  thread 
271  it  grow  to  fetters, — or  hind  down  thy  arms 

With  chains  contained  in  chaplets.     Oh,  not  yet 
May'st  thou  unbrace  ttiy  corslet,  nor  lay  by 
Tuy  sword — not  yet,  O  Freesom  1  close  tay  lids 
In  slumber  ;  for  thine  enemy  never  sleeps. 
And  thou  must  watch  and  combat  till  the  day 
Of  the  new  earth  and  heaven. 

— WUliam  Cullen  Bryant. 


THE  COMSTOCK  LAWS.  45 


JUDGE  FIELD'S  OPINION  IN  THE 
JACKSON  CASE. 

SUPRBME   COURT   OF  THE   UNITED  STATES. 

Number  G  {'iriginal). — October  Term^  18t7. 

In  the  raster  of      \  On    petition    for  wrHs    of    habeas 
A.  OrUndo  Jackson,  f  corpus  and  certioriri. 

1. — The  power  vested  in  Congress  to  establish  ^'pof^t-offices 

an.l  poet-roads''  embraces  the  regi)Ution  of  the  entire 

postal  system  of  the  country.    Under  it  Congress  msy 

esignate  wliat  shall  be  carried  in  the  mail,  and  wh  -t 

shall  be  excluded. 

2. — In  the  enforcement  of  regulations  excluding  matter 
from  the  mail  a  distinction  is  to  be  made  bet\veen  dif- 
ferent kinds  of  mail  matter;  between  what  is  intended 
to  be  kept  free  from  inspection,  such  j».s  letters  and 
sealed  packages  subject  to  letter  po>^taf^c  ;  an  J  what 
is  open  to  inspection,  such  as  newspapers,  maga- 
zines, pamphlet?,  and  other  printed  matter,  purposely 
left  in  a  condi'ion  to  be  examined. 

8 — Letters  a^d  sealed  packages  subject  to  letter  po«tage  in 
the  mail  can  only  be  opened  and  ex!\mined  under  Lke 
warrant,  issued  upon  similar  oath  or  affirm%tion,  par- 
ticulatly  describing  the  thing  to  be  seized,  as  is  re- 
quired when  papers  are  subjected  to  search  in  one's 
own  household.  The  constitutional  guaranty  of  ^ 
the  right  of  the  people  to  be  secure  in  their  papers 
against  unreasonable  searches  and  seizures  extends  to 
their  papers,  thus  closed  against  inspection,  wher- 
ever they  may  be. 

4. — Regulations  against  the  transportation  in  the  mail  of 
printed  matter,  which  is  open  to  examination,  can- 
not be  enforced  so  as  to  interfere  in  any  maener  with 
the  freedom  of  the  press.  Liberty  of  circulating  i* 
essential  to  that  freedom.    When,  therefore,  priotecl 


46  THE   COMSTOCK   LAWS. 

matter  is  excluded  from  the  mail,  its  tranpportf  tion 
ia  any  other  way  cannot  be  forbidden   by  Con^reB!?, 

5. — Regulations  excluding  matter  from  the  mail  may  be  en- 
forced through  the  CDurts,  upon  competent  evidence  of 
their  violation  obtained  in  other  vvrays  than  by  the  un- 
lawful inspectioa  of  letters  and  sealed  packages  ;  and 
wiih  respect  to  objectionable  printed  mailer,  op  n  to 
examination,  they  may  in  som*^  cises  also  be  enforced 
by  the  direct  action  of  the  f -flayers  of  the  postal  ser- 
vice upon  their  own  inspection,  as  where  the  object 
is  exposed  and  shows  unmistakably  Ihn  it  i^  pronib- 
iteJ,  as  in  the  case  of  aa  obs  ene  picture  or  print. 

6. — When  a  party  is  canvicted  of  an  cfFense,  and  sent^^nced 
to  pay  a  fine,  it  is  within  the  discretion  ot  the  court 
to  order  his  imprisonment  until  the  fine  is  paid. 

Mr.  Justice  FIELD  delivered  the  opinion  of  the  Court. 

Section  3.894  of  the  Revised  Statutes  provides  t^at  "No 
letter  or  circular  concerning  [illega  ]  lot'eries,  sociUed  gift- 
conceits,  or  other  similar  enterprises  offering  prizes,  or  con- 
cerning schemes  devised  and  intended  to  deceive  and  de- 
fraud the  public  for  the  purpose  of  obtaining  money  under 
false  pretenses,  shall  be  carried  in  the  mail  ;"  and  that  "  any 
person  who  shall  knowingly  deposit  or  send  anything  to  be 
conveyed  by  mail  in  vi  )latio!i  of  this  pection,  sh&ll  be  pun- 
ishable by  a  fine  of  not  more  than  five  hundred  dollars  nor 
leas  than  one  hundred  d oiUra.  wiih  costs  of  prosecution." 
By  an  act  passed  ia  July,  1876,  the  word  •' illegal"  was 
stricken  out  of  the  section.  Under  the  law  as  thus  amend- 
ed the  petitioner  was  indicted,  in  the  Circuit  Court  of  the 
Uoiied  Slates  for  the  Southern  District  of  New  York,  for 
knowingly  and  unlawfully  depositing,  on  the  23  \  of  Fehru 
ary,  1877,  at  that  district,  in  the  mail  of  the  United  S  nr.es, 
to  be  conveyed  in  it,  a  circular  concerning  a  lottery  off- nng 
piizea,  inclosed  in  an  envelope  addre-sed  to  oae' J.  K-t- 
cham,  at  Gloversville,  New  York.  The  indictment  s-ets 
forth  l6e  offense  in  separate  counts  so  as  to  cover  every 
form  in  which  it  could  be  stated  ujder  the  act.  Upon  be- 
ing arraigned  the  petitioner  stood  mnte,  refufring  to  plead, 
and  thereupon  a  p=ea  of  not  guilty  was  entered  in  h  s  he- 
half  by  order  of  the  court,  (Rev.  St.,  Sec.  1,032.)  He  was 
subsequently  tried,  convicted,  and  sentenced  to  pay  a  fine 


THE   COMSTOCK   LAWS.  47 

of  one  Imndrei  dollars,  with  the  costs  of  tae  pro3ecutr)n, 
and  to  be  committed  to  the  county  j-iil  until  the  fine  aad 
costs  were  p^id.  Upon  his  commitoient,  which  fo.lowed, 
he  presented  to  this  caurt  a  petition  alleging  that  he  was 
imprisoned  and  lestrained  of  his  liberty  by  ihe  marahai  of 
the  southern  district  of  New  York,  under  the  couvictiou; 
that  such  conviction  was  illegal,  and  that  the  illegillty  con- 
sisted in  this:  that  the  court  had  no  juri -diction  to  puni  h 
him  for  the  acts  charged  in  the  ind'Ctment  ;  that  the  act 
under  which  the  indictment  was  drawn  was  unconsti  ulion- 
a  a  'd  void  ;  and  that  the  court  exceeded  its  jurijdictioa  in 
conrimitting  hitn  until  the  fine  was  pa'd.  lie  therefore 
proved  f<  r  a  writ  of  habeas  corpus  to  be  directed  to  the 
marshal  to  bring  him  before  tbe.tourt,  and  a  writ  of  certio- 
raii  to  be  direcied  to  ihe  clerk  of  the  circuit  court  to  send 
up  the  record  of  his  conviction,  that  this  court  might 
irquire  into  the  cau«e  and  legality  of  his  imprisonmeat. 
Accompanying  the  petition  as  exhibits  were  copies  of  tlio 
indictment  and  oFthe  record  of  conviction.  The  couit.  in- 
stead of  ordering  tltat  the  writs  be  i.^sucd  at  onc3,  entered  a 
rule,  the  f  ouncil  of  the  peniioner  con?entiTg  thereto,  that 
Ciuse  bf  j-hown,  on  a  day  des'gaa'ed,  why  the  writs  should 
not  issue  as  prayed,  a^d  that  a  copy  of  the  rule  bs  served 
on  the  A^'orney  General  of  the  Unittd  States,  the  rrarvluil 
of  the  souihtm  district  of  New  York,  and  the  cle.k  of  the 
circuit  court.  The  A'torneyGeneral,  for  himsflf  and 
others,  an-w<red  the  rule  by  averring  that  the  petition  and 
exhibits  do  not  make  out  a  case  in  which  th's  court  has 
jar  if  diction  to  order  the  wri  s  to  issue,  and  that  the  pei- 
lioncr  is  in  lawful  custody  by  virtue  of  the  procef  dings  and 
fentcnr'e  mcotioned  in  the  exhibits,  and  tiie  commilmeat 
isiu^  d  ih'jrcoa. 

The  po  Tier  vested  in  Congress  "to  rstabHih  post  cffi -es 
and  pcst-roids  "  has  been  practically  construed,  since  ihc 
foundation  of  the  government,  to  author  ze  not  merely  the 
desiiiaa  ion  of  the  routes  over  which  the  mail  ehall  bo  carried, 
and  the  oflQces  where  letters  and  other  documents  shall  be 
rtc^^ived  to  be  distributed  or  forwarder,  bat;  the  carriage  of 
the  mail,  and  all  measures  necessary  to  secure  its  s^ife  and 
speedy  trisnsit,  ana  the  prompt  delivery  of  it^  contents.  The 
validity  of  legislation  prescribing  what  bhould  be  carried, 
and  its  weight  and  form,  and  the  charges  to  which  it  should 


18  THE   COMSTOCK   LAWS. 

be  subjected,  haa  never  b'-eri  q  lestioced.  What  should  be 
mailable  has  varied  at  different  times,  chang  ng  ^vith  the- 
facilifj'  of  transportation  over  ?he  po.-t-road?.  At  one  time 
only  letters,  r-ewspapers,  mag-^ziaes,  p^mpai?,  :-<xd  other 
printed  matter,  not  exceedicg  eight  ouLces  in  weight,  -were 
carried;  afterwards  books  were  added  to  the  iia  ,  and  now 
small  packages  (f  merchandise,  not  exceeding  a  presciibed 
weight,  as  well  as  books  and  priDted  n.s-tfer  of  a'l  kinds, 
are  transported  in  the  mal  Tlie  2)oiS'  r  posaessed  by  Congress 
embraces  the  regidaiion  of  the  tritlre  pobial  sysUm  ff  lite  country. 
The  right  to  design,'  te  icliat  shall  be  carried  nectsnurily  inwlv  s 
the  right  to  detcrndne  ichat  thall  be  excluded.  The  difflvu'ty 
altecdicg  the  subject  ariiref,  net  from  the  waot  of  power  in 
Congress  to  prescribe  regulations  as  to  what  shall  coLSli^ute 
mail  matter,  but  from  the  iliecessiiy  of  enfoicir  g  them  con 
ristenlly  wi;h  rights  reserved  to  the  people,  of  far  greater 
imporiancc  than  the  transportation  of  the  mail.  In  their 
eBfcrcement  a  distinction  is  to  be  made  betwctn  diffeiCLt 
kinds  of  mail  matter  ;  between  what  is  intended  to  be  kept 
free  from  inspection,  such  ss  letters  scd  sealed  packages 
subject  to  letter  postage;  and  what  is  open  io  icspection, 
such  as  newspaper?,  magazines, pamphlets,  and  other  prmted 
matter,  purposely  left  in  a  condition  Io  be  cxanuDed.  Lit- 
ters and  sealed  packages  of  this  kind  in  the  mail  are  as 
fully  gjarded  from  examination  and  inspection,  except  as 
to  tlieir  outward  form  and  weight,  as  if  they  were  retained 
by  the  parties  forwarding  them  in  their  own  domici)?.  The 
conf^tituiioijal  guaranty  of  the  right  of  the  people  to  be  secure 
in  their  papers  against  un; easoflfble  searcLes  and  seizures 
extends  to  their  papers,  tluis  closf  d  ^ga-cst  inspeclJon, 
wherever  they  may  be.  Whilst  in  the  mail  Viey  cm  on^ybt 
opened  and  eiarrdaed  under  like  loarrant^  issved  up  n  si^rdlar 
0"th  or  ojjirniation^ particidarly  dencribingVu  tldi-g  io ie .  c  zed,  as 
is  required  ichen  paptrs  ure  suljtcted  to  tearch  in  one's  oicn  house- 
hold. Ko  law  in  Congiess  can  place  in  the  hands  of  efficials 
connected  with  tbe  postal  service  any  aiiihori'y  to  invade 
the  secrecy  of  letters  and  tuch  sealed  packages  in  the  mnil ; 
ard  all  regu'a' ions  fdopled  as  to  mail  matter  of  this  kind 
must  be  in  subordination  to  tho  great  priv-ciple  embodied  in 
tfee  f  junh  amendment  of  the  Cone'itutiiu' 

Nur  can  any  regulations  be  enforced  aganst  the  transpor- 
tation of  printed  matter  in  the  mail,  which  is  open  to  exam- 


THE   COMSTOCK   LAWS.  49 

inatioD,  so  as  to  interfere  in  any  manner  wiih  the  freedom 
of  the  press.  Liberty  of  circuiting  is  as  essential  to  that 
freedom  as  liberty  of  publishing;  indted,  without  Ihe 
circuktion  the  publication  wonM  bo  of  little  vniue.  If, 
THEREFORE,  'printed  maiUr  be  excluded  from  the  mails,  its 
transportaiion  in  any  other  way  cannot  he  forbidden  by 
Congress. 

In  183G,  the  question  as  to  the  i)OweT  of  C">n:5resai  to  (X- 
clude  publications  from  the  mail  was  discussed  ia  the  Senate 
and  the  prevailing  opinion  of  ita  members,  as  txprt^Sied  ia 
debate,  was  against  the  existence  of  the  power.  Presirient 
Jackson,  in  his  annual  message  of  the  previous  year,  hal 
referred  to  the  attempted  circulition  thrcugh  the  mail  of 
icflimmatory  appeals,  addressed  to  the  passions  of  the  slaves, 
in  prints,  and  in  various  publications,  teDding  to  stimulate 
them  to  insurrection,  and  suggested  to  Congress  the  pro- 
priety of  passing  a  la^y  prohibiting,  under  severe  pe  lalties, 
such  circulation  of  "incendiary  publicaUons  "  in  the 
Southern  States.  In  the  Senate,  that  partion  of  the  message- 
was  referred  to  a  select  committee,  of  which  Mr.  Calbom 
was  chairman ;  and  he  made  an  elaborate  rcpoit  on  ths  sub- 
ject, in  which  he  contended  that  it  belonged  to  the  sta^e^, 
and  not  to  Congress,  to  determine  what  is  aed  what  is  net 
calculated  to  disturb  their  security,  and  th  it  to  hold  other- 
wise woull  be  fatal  to  the  states;  for  it  Congress  mii;ht 
determiue  what  papers  were  incendiary,  and  as  such  pro- 
hibit their  circulation  through  the  mail,  it  might  also  deter- 
mine what  were  not  incendiary  and  enforci  their  circula- 
tion. Whilst,  therefore,  condemning  in  the  strongest  terms 
the  circulation  of  the  publicalions,  he  insisted  that  Cougrts? 
had  not  the  power  to  p^ss  a  law  prohibiting  their  transmis- 
sion through  the  mail,  on  the  ground  that  it  would  a^ridiie 
the  liberty  of  the  press.  "  To  understand,"  he  said,  "  more 
fully  the  extent  of  the  control  which  the  right  of  prohibuinq: 
circulation  through  the  mail  would  give  to  the  government 
over  the  press,  it  must  be  borne  in  mind  that  the  po^er  vf 
Congress  over  the  post-office  and  the  mail  is  an  exclusive 
power.  It  must  also  be  remembered  that  Congress,  in  the 
exercise  of  this  power,  may  decUre  any  road  or  navi^'able 
•water  to  be  a  post-road  ;  and  that,  by  the  act  of  1835,  it  is 
provided  '  that  no  st5ge,  or  other  vehicle  which  regul?u]y 
performs  trips  on  a  post-road,  or  on  a  road  parallel  to  it. 


60  THE   COMSTOCK   LAWS. 

sball  carry  letters.'  The  same  provision  extends  to  pacfeet?, 
boats,  or  other  vessels  on  navigable  waters.  L  ke  provision 
mjy  be  ex  ended  lo  newppipers  and  pimphletP,  waich  if  it 
be  admiued  that  Compress  has  the  righ*;  to  discrim  nxie  ia 
reference  lo  tlieir  character,  what  papers  t-h-^.U  or  whit  bhall 
not  hi  t-aasmi  ted  by  tbe  mail,  would  subject  the  frer-dom 
of  the  press,  on  all  subJHCts,  politlc:>l,  mortl,  and  religion'^, 
completely  to  its  will  and  pleasure.  It  would,  in  fact,  in 
some  respects,  more  effectually  control  the  frcirdom  of  the 
p  ess  'ban  any  sediiion  law,  huwever  severe  its  penalties." 
Mr.  Calhoun,  at  'he  same  time,  contended  that  wheu  a  state 
had  pronounced  certain  publications  to  be  dangerous  to  its 
peace,  and  proh.bited  their  circulition,  it  was  the  duty  of 
Congress  to  respect  its  Uws  and  co-operate  ia  their  enforce- 
ment ;  and  whilst,  therefore,  Congress  could  not  prohibit 
the  transmission  of  the  incendiary  documents  through  the 
mails,  it  could  prevent  their  delivery  by  the  po-^t masters 
in  the  states  where  \h,eir  circulation  was  forbidden.  In 
the  discu-sion  upDj  the  bill  leporttd  by  him,  similar  views 
against,  the  power  of  Congress  were  exprev^sed  by  other 
senators,  who  did  not  concur  in  the  opinion  that  the 
delivery  of  papers  could  be  prevented  when  their  transmis- 
sion wa3  permiited. 

Great  reliance  is  placed  by  the  petitioner  upon  tkese  views, 
comingasihvy  did,  in  many  instances,  from  men  alik'i'iistin- 
guishfd  a'^  jurists  and  statesmen.  Bat  d  is  eviiUni  i'lat  ih-y  were 
found  d  upon  the  aftsumpU'on  that  it  was  competent  f,^r  Conr/rtss 
t)  rroh.bit  Vie  triin>portit.on  of  nticspapers  and  pamphlets  over 
postal  routes  in  a)>y  other  way  than  by  mail;  t-nd  of  c^urse 
it  would  follow  that  if,  with  such  a  prohibition,  tbe  trans- 
portation m  the  mail  could  also  be  forbidden,  the  circulation 
of  ibe  documents  woul  J  be  destroyed  and  a  fatal  blow  given 
to  the  freedom  of  the  press.  Bat  we  do  not  think  that  Con- 
gress possesses  the  power  to  prevent  the  transportalion  in 
o  her  -ways  as  mercbandise,  of  matter  which  it  excludes 
from  the  mails.  To  give  efficiency  to  its  regulations  and  pre- 
vent r  val  postal  systems  it  m^y  perhaps  proHM  the  carriage 
by  o\\ers  for  hire  over  postal  routes  <f  ariicUs  'cchi-Ji  legitimately 
c^r..d.t'/te  mail  ihoiter  iu  ihc  £e::se  In  which  tnose  terms  were 
Ubci  Vvht^n  ilie  Ciusut'-iiiou  was  adopted — couiisiing  of  let- 
teis,  and  of  new<;papers  and  pamp^bts  when  AOt  sent  as 


THE  COMSTOCK  LAWa  51 

merchandise — but  further  than  this  its  power  of  prohibi'ioa 
caano   extend. 

Wiiiist  regulations  excluding  mat'erfrom  the  mail  cannot 
be  enforced  in  a  way  which  would  lequire  or  permit  hu  ex- 
amination into  letters  or  sealed  pukigessulj  otto  l.tter 
pf)r.tige,  without  warrant  i-sued  upon  oaih  or  i,tlinn  tton,  in 
ihe  s-arch  for  prohibited  naatter,  they  m:y  be  euto  cfd  upon 
competent  evidence  of  tbeir  violaiion  obtained  in  oitier 
wtiys,  a^  from  the  parties  receiving  the  letters  or  packcge*,  or 
from  Hgents  deposiiing  them  in  the  p>-t-((li"e,  or  o:h<r3 
cogniz.nt  of  the  facts.  And  as  to  objectionable  printed  mat- 
ter, which  is  rpen  to  examination,  iha  re^ulaions  may  be 
enforced  in  a  similar  way,  by  ihe  imp(nitii)n  cf  ptLaliies  for 
their  violation  through  the  court-;  and  in  some  cases,  by 
the  direct  art'on  of  the  rffi^ers  cf  the  postal  scrvce.  In. 
many  instances  those  officers  can  act  upon  their  own  innpec'ion, 
and  from  the  nature  of  the  case  must  act  wuhout  other 
proof,  as  wliere  the  po-^tage  is  not  prepaid,  or  where  there 
I*  aa  excess  of  weight  over  the  amount  prescribed,  or  wliere 
the  object  is  exposed  and  i-hows  unmi-.takably  that  it  is  pro- 
hibited, as  in  the  cnse  of  an  obscene  picture  or  p'int.  la 
such  cir.es,  no  difficulty  avis  s.  and  no  principle  ii  vi dated  in 
excluding  the  pro/iibitd  ariiclcs  or  rcfas  ng  to  forward  tlum. 
Tne  evidence  respecting  them  ia  seen  by  every  ore  and  is  in 
its  na'ure  conclusive. 

lu  excluding  v^inous  article?  from  the  mail  the  olject  of 
Congress  has  not  been  to  interfere  with  the  freedom  of  the 
pres-j,  or  with  any  orher  rights  of  the  peop  e,  but  lo  ref'ise 
i  s  facilities  for  the  distribution  of  matter  deemed  injurious 
to  the  public  morals.  Thus,  by  the  act  of  Murch  3,  187«j,  C  n- 
gress  declared  "  that  no  obtcenc,  lewd,  or  1  iscivious  b  ok, 
pimphlet,  p  cture,  paper,  print,  or  other  publica:ion  of  an 
indecent  char  c  er,  or  any  article  or  thing  de?i^ned  or  in- 
tended for  the  prevention  of  conceptioi  or  pr;  curing  of 
ahortion,  nor  any  ariicle  or  thing  intCLded  or  adapted  for 
any  i.idecent  or  immoral  use  or  natiire,  nor  any  wntien  or 
printed  card,  circular,  book,  pamphlet,  advertisement,  or 
notice  of  any  kind  giving  information,  directly  or  indirectly, 
where,  or  how,  or  of  whom,  or  by  ^^hat  means  either  of  the 
things  before  mentioned  may  be  obtained  or  made,  nor  any 
leiter  upon  the  envelope  of  which,  cr  postal  card  upon  which 
indecent  or  scurrilous  epithets  may  te  written  or  printed,  shall 


52  THE   COMSTOCK   LAWi 

be  carried  in  lh*»  mail,  and  any  person  who  shall  knowingly 
deposit,  or  cause  to  be  deposited,  for  roailing  or  delivery, 
any  of  the  hereinbefore  mentioned  arti  les  or  things,  .  .  . 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  convic- 
tion thereof,  shall,  for  every  offense,  be  fined  not  le^s  than 
one  hundred  dollars  nor  more  than  five  thousand  dollars,  or 
imprisonment  at  hard  labor  not  less  than  one  year  nor  more 
than  ten  years,  or  both,  in  the  discretion  of  the  jadge  " 

All  that  Congress  meant  by  this  act  was,  that  *-he  mail 
should  not  be  used  to  transport  suchcorruptmg  publications 
and  article^:,  a-  d  that  any  one  who  attemptod  to  use  it  for 
thut  purpose  should  be  punished.  The  sam^  inhibition  has 
been  extended  to  circulars  concernicg  lotteries,  institutions 
which  are  supposed  to  have  a  demoraliziag  influence  upon 
the  people.  There  is  no  qutstioa  before  us  as  to  the  evi- 
dence upon  which  the  coavictloa  of  t'ae  p-Jtitioa-jr  wis  hid; 
nor  does  it  appear  whether  the  envelope  in  which  the  pro- 
hibited circular  was  deposited  in  the  mail  was  sealsd  or 
left  op^n  for  examicauon.  The  only  question  for  our 
determination  relates  to  the  constiluiionality  of  the  act, 
and  of  that  we  have  no  doubt. 

Tlie  commitment  of  the  petitioner  to  the  county  jail  until 
his  fine  is  paid  was  within  the  ddscretion  of  the  court  under 
the  statute. 

As  there  is  an  exemplified  copy  of  the  record  of  the  peti- 
tioner's indictment  and  convirtloa  accompanymg  the  peti- 
tion, the  merits  of  his  case  have  been  considered  at  his 
request  upon  this  application,  and  as  we  are  of  opinion  that 
his  ioQprisonment  is  legal,  no  object  would  be  subserved  by 
issuing  the  writs;  they  are,  therefore,  denied. 

D.  W.    MiDDLETON, 

c.  s.  c.  u.  s. 


ON   THE   COMSTOCK  LAWSk  29 

AS  ABfSWER  TO  THE  IXDEX  CRITICISIIS. 

BY  T.  B.  •WAKEMAN. 

The  editor  of  T7ie  Index  has  honored  my  speech  at  Faneuil 
Hall  again&t  the  Comstock  Postal  Laws  with  criticisms  now 
exiended  to  about  eleven  coluiiins.  This  reminds  me  that 
**it  nerer  rains  but  it  pours;"  ajd  if  in  all  this  quantity  of 
words  some  things  seem  to  escape  me,  let  it  be  charitably 
remembered  that  I  cannot  reply  to  every  sentence.  But  I 
will  be  careful  to  meet  the  material  points.  This  I  will  do 
cheerful  y,  for  these  criticisms  are  the  first  and  only  public 
objections  that  hav  been  presented  to  the  positions  taken  ia 
thfit  speech  O.herwise  it  has  received  a  very  general  and 
decided  approval  from  those  who  seem  to  me  most  compe- 
tent to  judge. 

Bat  let  no  one  euppose  that  those  positions  are  par- 
ticulaily  mine.  They  be'.ong  to  the  mass  of  the  Liberals, 
and,  1  believe,  to  the  i  lass  of  the  people,  of  this  coun- 
try. They  were  embodied  in  the  petition  against  the  Com- 
fetock  Laws,  signed  by  some  70,000  citizens.  They  were 
approved  by  the  (fficers  aiid  audience  of  the  Ind  gnation 
Me-  tini;  before  which  the  speech  was  delivered  in  Faneuil 
HhII;  they  were  deliberately  approved  and  incorporated  into 
the  ResoluiioDS  of  tbe  great  Couvention  of  L  berals  of  every 
shade  of  belief  held  at  Watkins  ;  they  hav  been  generally 
approved  by  the  Liberal  press,  and  also  by  distinguished 
Liberals  in  many  speecbes  and  letters,  and  of  which  one 
from  Mr.  James  Parton  was  publifthed  as  a  specimen  in  t(^ 
last  number  of  27ie  Index. 

The  editor  also  does  the  Liberals  too  much  honor  if  he 
represeuts  the  position  as  peculiar  to  them.  It  is  simply 
th>it  of  ihe  Constitution  and  of  the  people  at  large,  and  only 
as  i^uch  hav  I  presented  it. 

He  aloo  lays  out  tbe  geography  of  the  discussion  in  too 
much  of  an  individual  mauner,  as  though  it  was  a  kind  of 
triingular  contest  between  Messrs.  Haywood  and  Tucker, 
and  myself,  and  bimself ;  whereas  the  rell  question  is  simply 
"Whether  we  shall  insist  upon  ihefree  press  and  free  post-office 
which  the  Constitution  provided  for  us,  or  not. 

On  this  question,  which  is  the  only  issue,  the  editor  and 
his  personal  friends  stand  against  the  mass  of  the  Liberals, 


50  REPLY  TO  THE   INDEiSt 

as  I  hav  indicated,  and  will  stand  against  the  people  of  the 
country  wben  their  attention  can  be  called  to  the  issue. 

Msrssrs.  lley  wood  and  Tucker  do  not  differ  trooi  the  L'b- 
erals  of  the  country  on  this,  the  only  issue  before  us.  What 
the  slates  may  or  ought  to  do  about  (  bscenity  are  q'lesiions 
as  to  the  disc: eionary  exercise  of  &tate  powers.  N)  ques- 
tion of  that  kind  is  now  before  the  League  or  the  L  btrals  of 
the  country;  and  until  the  Liberals  can  get  Mr.  lley  wood 
out  of  j  iii  1  do  not  propose  to  discuss  with  him  how  far  or 
in  wbac  waj'^  the  states  should  exercise  a  power  which  all 
must  admit  they  possess.  1  do  not  believe  in  hiiting  a  man 
who  is  down— not  even  Mr.  Heywood.  He  is  not  to  be  h^ld 
responsible  for  his  opinions  until  he  is  a  free  man.  As  long 
as  he  is  in  prison,  his  extreme  views  as  to  the  exerci-e  of 
state  powers  are  not  to  be  wondered  at,  and  are  certainly 
excusable. 

The  question  is,  Shall  the  Comstork  Postal  Laws  be  re- 
pealed? The  position  of  Congress  and  the  pc  p'e  for  one 
hundred  years,  i.  e  ,  until  the  Comstock  Postal  Laws  were 
pissed,  was  stated  and  defended  in  the  speech  referred  to. 
It  was  Substantially  as  follows: 

"(1)  That  the  Constitution  of  the  Unitfd  States  confers 
upon  Congress  no  power  whatever  to  legis'ate  upon  thii 
subject;  that  its  atiempts  so  to  do  in  the  Coms<tock  postal 
laws  arti  beyood  even  any  'implied  powers,'  and  are  plain 
uaurna'ions,  which  break  down  the  who'e  Con^utution  as 
the  bulwark  of  liberty,  aod,  in  the  words  of  Hon.  El  zjr 
Wright,  leave  it  'not  worth  two  b'ass  buttons;'  ihat  those 
laws  are  in  fcub4ance  a  decoy  and  espionage  system  over  the 
povt-(  ttice;  that  tht-y  have  been  the  source  of  g^eat  wrongs 
and  inj  isticf ;  and  iha^.  they  cannot  be  amended  so  as  t )  be 
tafe  aud  cousrituiional,  and  should  th'^refore  be  repealed. 

"  (2)  That  the  power  to  sup.iress  ob^cenify  and  indecency, 
tog  t her  with  all  other  crimes  or  ott'>^n<«fs,  is  one  of  the  gen- 
eral powers  reserved  in  the  United  S  ates  Constitution  to 
the  people  and  the  ^ta^^es,  and  that  it  should  be  exercised  by 
the  fctaie  l«gife.latures  and  courts  with  the  greatest  caution, 
only  in  'unequivocal  acd  well  defined  c«ses,'  and  plainly 
whliin  the  constitutions  of  the  several  states." 

The  speech  in  question  is  a  defence  of  these  positions  from 
a  constituti  nal,  piolitical,  and  moral  point  of  view,  as 
against  a  dictum  of  the  United  States  Supreme  Court.  As 
this  speech  has  never  appeared  in  The  Index,  1  must  remind 
all  coucerned  that  no  adequate  understanding  of  Ihis  discus- 


ON  THE   COiTSTOCK  LAWS.  Si 

sion  can  now  be  had  without  reading  it,  and  the  opinion  of 
the  United  States  Supreme  Court  annexed  to  it.  I  will 
cheerfully  send  both  to  any  address,  so  as  to  do  what  I  can 
to  aid  in  ihe  proper  understandiog  of  this  subject.  1  ofier 
to  do  this  because  I  hav  not  time  to  answer  the  lengthy 
criticisms  in  detail,  and  because,  after  considering  tbem 
carelully,  it  seems  as  though  a  careful  reading  of  the  speech 
itself  would  be  the  only  answer  to  most  of  them  really 
needed. 

I  say  this  not  with  any  feeling  of  disrespect,  but  from  the 
belief  that  if  the  editor  had  delayed  forming  an  opinion 
until  he  "had  thought  out  the  subject  in  all  its  bearing-,*' 
and  bad  been  free  from  unfortuna-e  circumstances  acd  con- 
troversies  that,  I  fear,  hav  uucoufeciou-ly  inflatnced  his 
judgment,  he  would  hav  stood  bravely  with  us. 

This  view  is  confirmed  by  the  naiure  of  bis  objections, 
which,  let  me  say  once  more,  eeem  to  inv.  Ive  do  real 
diflerence  of  principle,  but  only  (1)  confusions  and  {2)  mis- 
apprehenfsions,  which  he  unfortunately  seems  to  desire  to 
magoify,  as  if  in  self-dtfcnse. 

The  discussion,  so  far  as  it  has  gone,  has  certainly  devel- 
oped important  agreements,  which  I  did  not  anticipttte  from 
the  dtfiant  mjiuner  in  which  the  editor  opened  it.  L"t  me 
call  attention  to  these  agreements,  as  the  common  ground 
between  us  from  which  we  may  hope  to  conquer  the  remain- 
ing d  fF^rences. 

I.  The  editor  is  entirely  with  us  on  the  most  important 
part  of  the  subject — one  that  seems  to  me  to  involve  in  sub- 
stance the  who'e.  Ue  agrees  ihnt  the  pr^st-nt  Comstock 
Laws  are  unconstitutional;  ihnt  th*  y  abridge  the  freedom  of 
the  press;  and,  thertfjre,  that  the  Sapreme  Court  is  all 
wrong  on  this  subject,     lie  says: 

"We  entirely  agree  with  Mr.  Wakeman  that  the  Comstcck 
laws,  as  they  hav  been  adnduidtred — nay,  more,  ai  they  cun 
scarctly  IhiI  to  be  administeied,  so  long  as  they  retMo  tbeir 
p'-eseot  dangerous  vagueness  and  inOefiniif  n^^fjj — fingrantly 
'Diota'e  I  be  fieedom  oi  the  press,  and  are  certniniy  lur  iijai 
rea-'ii  xHiCoi.t^iituiiojial.  llis  ar^um^Lt  is  ptv^ertul  and 
un,a?uice7'ible,  ^o  lai  as  it  lelaies  to  liieie  laws  in  iLtir  pres- 
ent loim." 

Tlic  bufct  thing  to  do  with  unconstitutional  laws  is  to  re- 
peal them ;  that  is  the  general  impression.    But  the  editor 


32  REPLY  TO   THE   INDEX  ' 

wishes  to  reform  them.  But  he  ia  certainly  ii^^der  a  misap- 
prehension in  supposing  that  these  uacoDSUiutiniftl  laws  can 
be  made  conRiitutional  by  being  m«de  more  dtfiaite.  Tiij»t 
is  a  great  difficulty,  certhiniy,  bui  not  the  gre^te'^t. 

The  Iroab  e  is,  ua  the  aj>  ument  proves  in  ihe  ^pefch 
■whiLh  he  Says  is  ucanswtrable,  that  no  p«  stal  laws  on  this 
subject  can  be  enforced  at  all  wiihout  abridging  the  freedom 
of  Ihe  press,  because  they  involve  espionage  and  decoy  as 
the  only  possible  means  ot  their  enforcement. 

The  poison  is  the  very  pubetance  of  them.  Judge  Field, 
in  the  Opinion  of  the  Cjurt,  points  out  these  iiiquis^iions  as 
the  only  means  by  which  the^e  laws  cm  be  enforced,  and 
thty  arc  the  only  means  that  hav  been  or  can  be  practically 
used.  Toe  Judge  expres-ly  says  that  the  pirty  'receiving 
the  prohibittd  matter  may  complain, "  or  "  the  officers  of  the 
postal  service  can  act  upon  their  own  in?pectiou  "  "in  ex- 
cluding the  prohibited  articles  or  lefusing  to  forward  them," 
and  such  official  may  also  mbke  the  complaint,  of  course. 

Now,  the  "  unsnowerttble  "  argument  goes  to  show  that 
no  p  >wer  of  this  kind  was  ever  dreamed  of  under  th--  Ctm- 
stitution,  and  that  its  exercise  is  a  direct  violation  of  the 
freedom  of  the  pres?,  and  of  the  freedom  (f  property  from 
seizure  granted  by  the  Constitution,  and  that  it  is  a  means 
of  irqiisition  "  uttfiiy  inconsistent  wiih  the  geiiius  of  free 
instituliOB.'^^,"  as  the  League  resolved  at  Philadelphia. 

1  hav  repeatedly  aud  respectfully  rrqiested  the  editor  to 
dra't  a  statute  that  shall  be  free  from  "  v«gueness  and  ia- 
dtfioiteness"  and  which  shall  hav  any  practical  vtilue 
"wiihout  involving  ihes^e  very  objections  which  h«v  mmle 
my  argument  "unanswerable."  The  gener.il  talk  about 
"  rtfoim  "  is  of  no  possible  use  in  such  cases  as  this;  if  the 
thing  can  be  done,  he  is  under  the  deepest  obl'gau^u  to 
shoMv  how  V.  can  be  done.  Un*il  he  give*}  us  a  leformed 
Comr-t;  ck  Liw  he  is  cleaily  guilty,  not  only  of  "vagueness 
and  indetiniteness  '  himseP,  but  is  guilty  of  making  a  schism 
in  the  Liberal  ranks  without  any  sounj,  clear,  or  sure 
ground  to  go  upon.  Vague  declarati  »ns  about  "  rtform  " 
end  '•  purity  "  and  "  pnuciplts"  am(  unt  to  notliin:^.  L  t 
us  see  the  uncoastiiulion  d  law  "  ret.  rmed  "  in  o  a  c.j:i- 
Biilutionii  one,  or  let  us  hav  silence  on  this  whole  sui  jj.t. 

The  editor  intimates  that  the  elements  needed  arc  ctr- 
taiuty  of  definition,  and  inquiry  into  the  "  intention  "  of  the 


ON  THE   COMSTOCK   LAWS.  83 

sender.  But  "legal  definitions  of  any  crime "  must  be  by 
afs,  vrordF,  or  til'  g«  ;  ard  '*  obscenity  "  is  neither,  unless 
.'dl  (  i  tie  ac»f^,  woriis,  and  tbiDg^  are  dearribtd.  Let  the 
editor  fj  V  tlipm  !  Aod,  ai^fiin,  when  it  comes  to  "inten- 
tion," what  legal  process  can  ever  reach  and  determine  thit? 
O  :ly  one  trihuDii  has  sat  up  >n  the  ialenlions  of  men,  and 
taai.  was  the  Ii  q  .isition  itself  ! 

Lawyers  of  the  greatest  .'ki-1  bav  given  up  the  framing  of 
such  laws  in  de  pair.  I  hav  tried  far  enough  to  appreciate 
ttit^ir  (i  Hi  ulty,  A=i  an  introduction  to  Jhistisk  let  me  ask  the 
editor  to  rt  prin'.  a  remarkable  letter  of  the  great  American 
jir.st.  and  perhaps  our  grea'evt  codifiir.  E  lioard  Lidingsiori^ 
lound  in  hss  Life  by  C.  II.  Ilaveoa.  p.  2S9  (/Vopleton.  1864), 
and  wlii^h  was  reprinted  in  the  Bostoii  Traveller  of  July  15oh 
and  TJie  Word  (if  August  la  t.  But  Livingston's  d.fliculty, 
insnp'.rable  hs  he  found  it,  was  with  the  df^finitiocs  only;  he 
did  not  propose  to  dis^cover  and  pani>h  intentions  too.  By 
the  liiTi!-  the  editor  h>i8  di.spoicd  of  both  d  ffi  ulties  I  bel'eve 
L*'  will  li'  d  thit  the  only  practio.l  reform  of  the  Comstotk 
law  is  I  he  S  lakrperi-tn  ciy,  '*  Oh,  reform  it  altogether  1" 

Another  imp*  rant  agneraen'  to  t)e  obs(  rved  is  that  by  the 
t;da.i  si(ui  >  b  ve  quoted  Jhe  editor  has  plired  himself  with 
the  le-tof  the  Libtrals  in  direct  opposition  to  the  U.  S.  Sa- 
P'-f  me  C<>u!t  on  this  sui:j  ct.  It  is  merely  inconsistent 
crue  ty,  Ibeiefore,  for  the  mitor  to  refer  to  the  pre.*ump*ioa  ' 
ot  my  •'luiividuil  op  ninn  "  as  agiinst  the  Supreme  Court. 
Ta(  ugh  I  am  "meiely  an  cttorney,"  I  hav  as  good  a  riirht 
to  d  ssent  from  ttie  mi;ral  and  poliiical  and  constitutional 
op  ni.)ns  of  that  cou't  as  the  editor.  Bat  his  position  will 
he'p  all  Liberals  toteeihe  absolute  necessiiy  of  such  dis- 
Hn  ;  au.t  thit  the  grounds  of  tbe  spetch  in  that  regard 
f-h(  uld  be  lenlly  and  practical  y  admif ted  by  this  positioa  of 
tlic  «-(litor  hims-elf  is  a  great  siep  of  progress. 

II.  Auoilu  r  agreement  which  the  discussion  has  happily 
t'rou.  ht  out.  is  the  abandonment  of  the  second  i  lank  of  the 
Ctt'i  PiH.form  upon  wtiich  the  editor  r(q  lired  all  Liberals  to 
siiini  ».t  Syracu-e  or  suffer  the  ternble  coDSfq'ierce  of  hisin- 
d  uuai;t  ttban  ioiinent.  In  m\  former  letter  to  The  Index  \h.\B 
\)  ark  was  qiov.d  by  carefudy  (not  carelessly,  as  the  editor 
fcuppostd)  omit'ing  the  words  in  it  relating  to  the  state,  so 
that  its  statement  on  the  National  or  Postal  Law  question 
could  be  seen  at  a  glance;  thus  stated  it  afflrms:  "The  right 


34  EEPLY  TO  THE   INDEX 

and  duty  of  Congress  to  pass,  and  the  right  and  duty  of  the 
NitioDal  Courts  to  enforce,  laws  to  suppress  the  circulation 
of  obscene  literature,  indudir.g  tbe  exclusion  of  such  litera- 
ture from  the  United  Slates  m^ils  " 

It  will  be  seen  at  once  that  this  all-important  plank, 
upon  which  the  editor  insisted  we  must  all  stand  or  go  un- 
der, goes  to  the  lull  extent  cl  asstrtirg  the  unVmited  jaris- 
dict  on  of  the  United  States  over  the  whole  subject  of 
suppressing  the  circulation  of  obscene  literature,  and  that 
only  as  an  item  of  that  general  jurisdiction  he  included  the 
ex>  lasion  of  .^uch  literature  from  the  United  States  mails. 

That  this  was  the  editor's  former  vi^w  is  clearly  evi- 
dent from  his  editorial  of  September  26th,  in  which  he 
argues  at  length  fo»r  what  is  summed  up  in  these  words: 

"  The  powers  of  Congress  are  nothiog  but  tbe  powers  of 
the  people  ii'self  as  a  whole;  for  Congress  is  only  a  repre- 
sentative body  deriving  all  its  powers  from  the  people  it 
represents.  To  limit  its  powers,  therefore,  is  to  limit  those 
of  the  people." 

Again,  in  his  editorial  of  October  3d,  he  derives  this  gen- 
eral power  and  jurisdiction  of  the  National  Government 
from  the  nature  and  enormity  of  the  "  crime"  ifself.  He 
says  tbere  is  a  moral  justification  for  treating  this  business  as 
"a  crime,  not  only  by  state  but  also  by  national  legislation." 
"It  is  in  strict  accordance  with  the  spirit  af  the  U.  S  Con- 
stitution to  \n\Q\T^rei\\j  bl^  gWmg  jurisdiction  over  all  crimes 
whirh,  from  the  nature  of  the  case,  cannot  be  b^ougb^  under 
the  jurisdiction  of  the  separate  states.  The  crime  of  cown.- 
ierfeiting  is  of  this  nature  since  the  power  of  coining  money 
is  conierred  upon  Congress  alone;  and  the  crime  of  mailing 
obscene  literature  is  of  this  naiwre,  since  Congress  alone  has 
or  can  hav  the  power  to  le-iulate  the  Post-offlce  system." 

Here  we  hav  the  repetition  of  the  general  jirisdiction 
doctrine  of  the  Caid  with  a  vengeance!  Because  any  act  is 
very  bad  it  is  worthy  to  be  "  a  crime,"  and  if  tbe  states  can- 
not re>ich  it  conveniemly,  then  the  Constitution  authorizes 
Congress  to  create  it  into  "  a  crime  "  and  punish  ii !  Tuus 
C jngress  can  acquire  unlimited  criminal  jurisdiction  from 
its  judgment  of  the  criminality  of  acts  and  tbe  difiiculty  of 
the  states  in  punishing  them!  Can  this  be  seriously  pre- 
tended?   Is  it  possible  that  the  editor  wrote  what  is  aboye 


ON  THE   COMSTOCK   LAW3.  85 

quoted  after  he  had  "thought  out  the  subject  in  all  its  bear- 

iugs?" 

It  seems  not,  for  by  his  own  admission  in  the  next  edito- 
lial  in  the  same  paper,  in  reply  tj  my  letter,  which  pointed 
oat  the  absurdity  of  this  general  jurisdiction  plank,  he  says 
of  ♦.hat  Card: 

'  It  was  not  intended  to  force  the  jurisdicfioii  of  the 
whole  subject  itpon  the  United  Stiies  Government,  vor  do  ice 
think  the  vrord  ng  at  all  suggests  any  such  eiirav  ig mt  posit  on. 
Bug  we  tbke  this  opportunity  to  stite  that  tlic  piattorm  in 
\he  'Card 'is  not  proposed  fur  adoption  in  furr^  by  the 
^eague;  it  simply  states  the  principles  of  the  signers,  which 
•will  be  fully  '  approved  '  if  the  League  in  any  manner  adopts 
uncquiv(  Ciliy,  by  a  simple  m  j  )rity  vote,  the  policy  of 
seeking  to  *  reform  '  and  not  to  repeal  the  Comstock  laws.'' 

Now,  the  foregoing  is  a  frank  and  plain  withdrawal  of  the 
very  plank  upon  which  the  "reform"  rested  in  the  Card  We 
"weje  expressly  told  that  the  right  and  duty  to  exclude  was 
"included''  in  the  right  and  duty  of  Congress  to  p^ss,  and 
of  the  nalioabl  courts  to  enforce,  laws  to  tuppress  the  circa- 
tation  of  obscene  literature,  Now,  if  this  general  jurisdic- 
tion claim  is  abandoned  as  an  "txtravrtgant"  and  ridiculous 
blunder,  what  becomes  of  the  right  of  "exclusion  "  which 
was  "included"  in  it?  Why,  of  course^  that  falls  with  the 
right  am;  duty  in  which  it  was  included.  Tne  part  giies 
down  with  the  whole.  What  ground  is  left,  then,  upon  which 
the  editor  demands  that  we  must  still  vote  for  "reform?" 
He  asks  us  to  vote  for  reform  upon,  and  as  necessarily  in- 
cluded in,  a  "great  principle"  which  he  abandons  hs  soon 
as  its  "ex  ravagant"  nature  is  pointed  out  to  him,  and  yet  he 
insists  that  his  "  principles  "  will  be  approved  if  we  will 
only  vote  for  "reform,"  although  the  very  ground  he  rested 
it  upon  has  dropped  fcom  under  it. 

Bat  after  the  bottom  is  gone,  why  are  we  still  asked  to  stake 
our  all  upon  a  "  reform  "  that  all  experience  has  proved  to 
be  impossible?  Must  we,  simply  as  an  act  of  faith  in  him, 
take  it  like  a  pig  in  a  poke?-  and  that  after  finding  that 
the  very  plank  he  provides  for  the  reform  to  rest  upaa  is  so 
*•  extravagant"  that  it  breaks  with  the  first  footstep.  Wo 
are  tempted  to  ask  again,  Has  this  editor  "thought  out  the 
subject  in  all  its  bearings? " 

By  the  admission  above  made,  if  he  really  means  and 


86  REPLY  TO  THE  INDEX 

understands  it,  he  comes  back  to  the  old  and  safe  grounds  of 
the  speech,  which  would  end  all  d  ff^rences  at  nee,  t )  wi  : 
**The  power  possessed  by  Congress  embrace:!  the  regulation 
of  the  entire  postal  system  of  the  couurry  '  for  postal  pur- 
poses; but  not  for  moral,  religious,  political,  or  any  uUerior 
purposes. 

III.  But  no  sooner  is  the  admission  made  than  he  goes  to 
"work  to  invalidate  it;  and  that  brinj^s  us  lo  a  third  point. 
He  tries  to  revive  the  notion  that  the  power  to  create  and  to 
legislate  Against  "the  crime  of  mailing  obscene  literature''  is 
**  an  incidental  power"  necessarily  implied  in  the  power 
**to  establish  post-(  ffices  and  post-roads." 

In  the  speech  criticised  this  matter  was  so  thoroughly  dis- 
posed of  that  no  reply  is  needed  to  those  who  will  read  and 
heed  what  is  there  said.  It  was  there  shown,  iu  the  words 
of  Henry  Clay,  that  the  mere  mailing  of  anything  is  not  and 
cannot  be  made  a  crime,  and  can  never  be  lawfully  so  legis- 
lated by  Congress  under  the  Conftitution;  th  t  the  p;>st- 
ofiice  can  never  be  made  a  source  of  criminal  jurisdiciion 
or  means  of  detection  for  the  purpose  of  puaushiog  even 
the  crimes  which  are  named  in  the  Constitution  as 
within  the  jurisdiciion  of  Congress,  to  say  nothing 
of  making  new  crimes  which  it  has  no  right  what- 
ever to  create.  It  was  sho^vn  that  any  attempt  to  punish 
crimes  by  espionage  or  decoy  liws  could  only  detract  from 
the  use,  income,  and  "  conveniency  "  of  the  pos^tal  service; 
that,  instead  of  being  "appropriate  to"  postal  ends,  they 
were  detrimental,  expensive,  and  useless  as  such,  and  cou'd 
hav  no  use  or  justification,  unless  attempts  to  use  the  post- 
office  for  supposed  moral  purposes,  i.  e  ,  tor  "ulterior  pur- 
poses," could  be  justified;  that  until  a  part  couid+e  greater 
than  the  whole,  no  jastificition  for  such  purpose  was 
possible  under  the  postal  grant  of  the  Constitution. 

The  editor  dissents,  but  makes  no  serious  attack  upon 
these  positions — as,  indeed,  who  can?  They  Maud  as  they 
did  ia  1836  when  Din'el  VVebster  said  in  the  S-nate  that  he 
was  "shocked"  at  the  claim  to  the  contiaTy,  anil  that  the 
prohibition  of  the  mailirg  of  anyihng  on  account  of  its 
meaning  was  "express  y  unconstitutiona!,"  and  the  Smate 
agreed  with  him.  The  editor,  however,  refers  to  two  items, 
realiy  t.iken  from  the  speech,  which  seem  to  him  inconsisieat 
with  this  position.    One  is  counterfeiting,  and  the  other 


OIT  THE  COMSTOCK  LAWa  87 

postal  cards.  These  seem  to  me  amusiDg  items  to  be  brought 
forward  by  one  who  has  "thought  out  the  subject  in  all  iti 
bearings." 

Counterfeiting  is  referred  to  in  the  speech  as  one  of 
the  crimes  expressly  placed  by  name  within  the  juris- 
diction of  Congress  (Art.  viii,  §  0,  of  the  Consti'.uiion). 
M'^reover,  by  §  10  of  the  same  Anicle  all  of  the  other  crimts 
which  the  United  S.ates  are  allovt^ed  to  punish  at  all  are 
detlired  to  be  "piracies  and  felonies  committed  on  the  high 
seas,  and  offenses  against  the  laic  of  nations.'^  All  otlitr 
crimes  are  expressly  reserved  to  the  states,  except  treason, 
which  is  specially  provided  for  and  defined  in  another  Arti- 
cle, so  that  Congress  could  not,  by  definition  or  pretended 
incidental  powers,  get  further  criminal  jurisdiction  of  any 
kind. 

Now,  the  editor  argues  that  counterfeiting  is  really  an 
incidental  power  under  the  express  power  "  to  coin  money," 
etc.,  and  that  the  newly  made  "crime"  of  mailing  obscene 
litera  ure  is  similarly  an  incidental  power  under  the  fxpress 
power  "to  establish  post-offices  and  post  roads."  He  there- 
fore declares  them  both  "to  be  of  the  same  nature,"  and 
concludes  that  if  one  is  constitutional  the  other  must  be. 

The  answer  is  that  the  Constitution  has  expressly  pro- 
Tided  that  Congress  shall  punish  counterfeiting,  and  h  is  no 
word  whatever  that  looks  towards  making  a  "crime"  of  mail- 
ing anything,  or  punishing  obscenity  in  any  way.  It  is  true 
that  to  punish  counterfeiting  might  be  considered  an  inci- 
dental power  under  the  grant  "to  coin  money,"  etc.;  but 
the  editor  will  find  that  it  was  just  for  that  reason  that  the 
authors  of  the  Constitution  dragged  it  out  of  any  such  pos- 
sibility and  put  it  in  expressed  words.  They  expressly,  as  the 
debates  show,  used  every  precaution  to  prevent  tbe  infer- 
ence of  criminal  jurisdiction  from  incidental  powers,  and 
thus  in  this  only  case  where  it  might  hav  been  implied  they 
even  inserted  a  separate  clause  rather  than  hav  it  left  to  infer- 
ence. Now  the  well-known  rule  of  construction  is  that  the 
expiessed  inclusion  of  one  instance  in  a  grant  is  the  exclu- 
sion of  all  similar  instances  of  power.  The  expression  of 
this  only  instance  of  incidental  criminal  power  excludes  all 
other  instances  and  means  that  they  are  not  to  be  implied. 
It  shows  that  the  authors  of  the  Federalist  were  entirely 
right  in  saying  that  this  postal  power  "  must,  in  every  view, 


88  REPLY  TO  THE  I^^DEX 

be  a  harmleas  power."  By  •*harmles9,"  the  contemporarj 
di-cu^Mi>ns  show  they  meant  free  f.^om  usurpation  anc. 
crlmiaal  jurisd'cti m.  The  fditor  wculd  make  mail  carrying 
the  unliiiiited  sourc?  of  both! 

(2)  The  next  point  the  editor  discovers  13  that  the  speech 
isiacoasifetent  in  regard  to  postal  Cirds ;  but  he  is  mibtaket 
a^iraia. 

The  ppeech  says:  "  With  the  meaning  of  the  docurjer.ts 
INCLOSED,  the  Post  Ofilce  has  nothing  to  do;  and  if  they 
h-.v  not,  Congress  has  no  power  to  punish  for  sendiijg 
tbem.*' 

Agiin  it  says:  "  It's  repeal  \i  e  ,  Ihe  repeal  of  the  Cora- 
stoclc  law  of  1873],  is  juslly  caLed  for  upon  both  grounds  in 
the  petition  reitrred  to,"  that  is,  on  the  ground  of  is  un- 
constitutionality and  its  impolicy,  or  wickedness.  But  in 
"thinking  out  the  subject  in  all  of  its  bearings,"  each 
cUuse  of  the  Comstock  law  was  considered,  and  the  clause 
relative  to  postal  cards  was  disposed  of  in  t-his  way  in  the 
speech : 

•'A  post-rflSce  regulation,  that  all  matfer  should  be  in- 
CLOSKD,  and  that  postal  carda  should  contain  nothing  that 
could  be  I  ffensive  to  thofe  to  whom  ihey  are  rent,  or  to  the 
public,  i.-  all  that  is  necessary.  This  matter  of  the  posla. 
cards  is  ert  rely  in  the  power  of  the  department  as  a  yECCs- 
BARY  P(  STAL  RFGULATioN."  "  It  is  cvidemly  put  in  tl)e  law 
in  q-nstiou  only  \o  giv  it  the  color  of  necessity.  Ir  it  is 
though*;  best  to  letain  the  form  of  the  law,  it  should  be 
materially  modified  so  as  to  be  within  the  pos'ial  powers 
and  purposes  only." 

Now  the  editor  imagines  that  there  is  great  inconsistency 
in  these  quotations,  simply  because  he  overlooks  the  all 
important  d  fference,  expressly  pointed  out,  that  in  the  firs; 
case  inclosed  matter  only  is  treated  of,  which  differs  eniuels 
from  postal  cards  in  which  publicity  is  compelled  by  law, 
and  for  postal  reasons;  in  the  latter  case  the  same  reasons 
compel  that  they  shoulJ  be  inoffer  site  to  the  receiver  and 
not  exci'ing  to  the  public,  otherwise  1»bar  part  of  the  postal 
service  could  not  be  miintuined  at  all,  much  less  wotked 
conveniently.  As  it  is,  we  are  told  that  this  enforced  pub/- 
licity  is  the  great  objection  to  their  general  use  and  to  their 
Bafe  and  punctual  delivery.  It  is  said  and  believed  that 
often  the  re^l  excuse  for  th<;ir  tardy  delivery  or  loss  is  that 


ON  THE   COMSTOCK  LAWS.  80 

the  postal  employees  and  tbeir  friends  hav  not  Had  time  to 
decipher  them.  The  postal  reasons  for  reducing  this  disad- 
vantage of  the  po' tal  cad  se»vice  to  a  ci'Diaium  are  too 
apparent  and  pnctical  for  doubt,  and  such  reasons  hav 
dictiited  the  re?trictiocs  wherever  this  viw  system  Las  been 
adopted  as  the  frt^t  and  ntcessary  conilition  of  it-s  exi>»ence. 

Agiin,  th-it  this  service  U  a  new  postal  provisioi,  not 
inttndci'd  under  the  Uonstiiuiion,  may  leave  ii  uoder  the 
discretion  of  Congres"  to  provide  how  it  shall  be  used  is  a 
condition  of  granting  it  at  all,  as  in  the  case  of  the  postal- 
oarrying  of  dry-goods  and  parcels  of  merchandise.  But 
letter?,  p-^pers,  p  imphlets,  and  sealed  packets  were,  and  are 
mail  malter  under  the  Constitution,  which  Congress  cannot 
interfere  with. 

There  i^  no  inconsistency  in  the  speech,  then,  in  fU2:gest- 
ing  that  ihese  regrulations  sh(-uld  be  hose  of  the  Depart raent 
only,  and  that  Ihey  should  be  limited  to  postal  purposes, 
acd  to  ordinary  postal  fines  in  case  of  complaint,  thus  re- 
pealing the  cumbersome  penal  laws,  penalties,  and  proceed- 
ings r.'h  ch  are  not  ridiculous  on  this  trivial  subject  only 
because  they  are  terrible. 

But  notice  the  further  fact  that  even  this  p'^stal  inter- 
ference is  allowable  OEly  when  enforced  publ  city  requires 
it.  It  therefore  excludes  the  concision  that  it  cju  be 
rightfully  fallowed  as  \o  inc'osed  matter  where  there  is  no 
5uch  reason  for  it.  Where  the  reason  ceases,  the  law 
ccises;  and  the  inclusion  of  it  in  the  one  case,  according  to 
the  ru!'3  above  cited,  necessarily  excludes  it  in  the  other. 
S>  far  from  there  being  an  inconsistency,  the  postal-card 
regulations,  like  the  counterfeiting  illustration,  lead  to  ex- 
ac  ly  the  opposite  conclusion  the  editor  supposed,  and 
sustain  the  speech.  Thus,  when  a  "  subject  is  thought  out 
in  all  its  bearings,"  tru'h  ii  ever  confirmed. 

The  above  three  points  dispose  of  the  constitutional  and 
most  important  aspects  of  the  subject;  and  as  to  them  it  is 
clear  that  the  editor  has  admitted  or  confirmed  the  concu- 
tious  of  the  speech.  llis  *'retortr."  of  the  Comj'ioek 
post  al  laws  will,  therefore,  hav  no  legal  basis  to  rest  upon, 
3ven  if  he  could  make  them  safe  to  liberty,  and  practical, 
which  he  cannot. 

IV.  Here  we  might  rest  the  discussion,  but  for  some  grave 


40  REPLY  TO  THE   INDEX 

misappreTiensions  he  is  under  as  to  tlie  bearing  and  impor* 
tance  of  the  questions  involved. 

The  fir^t  we  will  no'ire  i=  a  fatal  misopprehension  as  to  the 
lecal  and  practical  importance  to  Kherty  of  preserving  the 
constitutional  provisions,  clearly  dt  fining  and  limiting  the 
Federal  jurisdiction  in  crim  nal  matters.  It  really  seems 
that  the  editor  has  forgotten  all  about  the  Constitution  and 
the  wisdom  and  statesmanship  that  formed  it.  How  else  could 
he  write  in  this  w^ay  ? 

"  So  far  as  freedom  of  speech  and  of  the  press  is  concerned, 
he  [Wakemau]  must  either  deny  the  right  of  the  states,  or 
else  concede  the  right  of  Congress,  to  suppress  literature  that 
is  really  obscene.  Freedom  is  violated  by  any  unjust  re- 
strictions, and  it  makes  not  a  pin's  difference  by  what  author- 
ity the  restrictions  are  imposed.  The  protest  of  principle 
must  lie  against  the  restrictions  themselves.  Mr.  Wake- 
man  de-troys  his  own  case  by  conceding  the  jus!ice  of  the 
restrictions  when  imposed  by  state  authority,  and  yet  in- 
veighing agninst  them  as  tyranny  when  imposed  hy  Congres- 
sional authority.  In  consequence  of  this  radical  and  fatal 
selfcoDtradiction,  the  view  he  presents  of  the  whole  subject 
is  merely  that  of  the  attorney  ;  he  has  not  treated  it  either 
as  a  Philosopher  or  Statesman." 

Aealn  hear  him : 

"The  fact  is  that  Mr.  Wakeman  has  not  thoroughly 
thought  out  his  subject  in  all  its  bearings  ;  he  has  treated  it 
in  too  narrow  and  technical  a  manner.  The  powers  of  Con- 
gress are  nothiijg  but  of  the  people  itself  as  a  whole  ;  for 
Congress  is  only  a  representative  body,  deriving  all  its  pow- 
ers from  the  people  it  represents.  To  limit  its  powers  there- 
fore, is  to  limit  those  of  the  people,"  etc.,  etc. 

It  seems  to  me  incredible  that  a  President  of  the  Liberal 
League  can  write  in  this  way.  Talk  of  statesmanship  !  when 
the  great  labors  of  all  the  statesmen  we  hav  ever  had,  hav 
been  t )  prevent  the  establishment  of  a  Federal  tyranny.  The 
safest  way  to  be  a  Philosopher  and  State-man  is  to  follow  in 
their  footsteps.  In  every  convention  and  meeting  that 
passed  upon  the  Cons'itution  in  its  form  ition  ;  in  every 
administration  that  has  shed  g«ory  on  the  Republic  since 
then,  the  point  was  and  has  been  to  defend  the  states  and 
people  from  the  tyranny  and  usurpation  of  the  General  Gov- 
ernment, backed  when  possible,by  the  Supreme  Court.    I 


I 


ON  THE   COMSTOCK   LAWSw  41 

pray  th6  reader  to  continue  the  line  of  argument  of  the 
speech  into  the  works  and  records  of  those  who  adopted  the 
OoDslituiion,  and  I  will  gladly  leave  the  question  of 
"  statesmanship  "  to  them  The  very  theory  of  our  Govern- 
ment, as  well  as  the  traditions  of  liberty,  are  in  darger  of 
being  lost  when  our  Liberal  teachers  write  in  the  mingled 
ignorance  and  indifTerence  above  quoted. 

As  Patrick  Henry  pointed  out  usurped  power  is  "  tyranny,'* 
and  is  irresponsible  and  unlimited.  If  Congress  can  create 
and  punish  crimes  without  regard  to  the  Constitution,  it  is 
the  end  of  all  popular  liberty.  Ttie  only  protection  the 
Liberal  party  and  Freethought  can  hav  against  the  whim  of 
a  majority  is  gone.  All  that,  was  said  in  the  speech  about 
the  necessity  of  insisting  upon  the  true  position  of  the 
Supreme  Court  as  simply  a  legal  tribunal,  and  not  an  arbiter 
of  morals,  religion,  or  liberty,  is  the  voice  of  statesmen,  and 
derives  strange  force  when  it  is  found  that  the  President  of 
the  Liberal  League  is  ready  to  surrender  *'  the  Bill  of 
R(gh!s,"  which  is  the  only  possible  protection  of  the  free, 
thinkmg  minority.  Suppose  that  Jefferson,  Jackson,  or 
Lincoln  had  done  so,  where  would  we  hav  been  ?  It  is 
clearly  the  lirst  duty  of  a  Liberal  to  stand  by  the  Constitution 
and  its  Bill  of  Rights  as  the  fountain  of  all  our  liberdes. 
When  that  is  frittered  away  by  giving  Congress  the  power 
to  create  and  punish  crimes,  the  temporary  p^rty  m  'jonty 
is  simply  an  irresponsible  tyrant.  It  will  wield  a  vast 
judicial  and  criminal  system  foreign  to  the  people,  and  before 
it  the  individual  will  be  as  helpless  as  before  a  Ras?iaa  Czir. 

The  great  purpose  of  the  Constitution  was  to  "protect  lib. 
erty"by  keeping  the  individual  before  the  legislature,  judge, 
and  jury  of  his  state  and  vicinage,  and  under  laws  that  he 
could  hav  some  influence  in  making,  executing,  or  chang- 
ing. These  are  the  very  conditions  of  liberty,  and  the  Fed- 
eral Government  can  only  protect,  them;  it  cinuot  supply  or 
replace  them. 

These  very  Comstock  laws  are  a  practical  illustration  of 
this  vit^l  d  stinctton.  All  of  th-;  oa^r.'g>3  h  iv  been  under 
the  United  States  laws  aud  by  Fcdtra  ja  iges  uad  ollicers. 
Under  the  state  lawe,  even  in  New  York,  unconstitutional 
as  I  think  they  are  there,  no  great  wrong  has  as  yet  been 
consummated,  and  there  is  less  danger  now  than  ever,  for 


42  REPLY  TO  THE   INDEX 

the  state  officers  and  grand  juries  are  recovering  from  their 
ob<>cen  ty  panic. 

I  am  uoL  DOW  called  upon  to  deiermiae  what,  re^itrictions 
the  stae  shou'd  impt  S3  lo  suopress  ohscen'y.  I  simp  y  s^y 
that  tho?e  which  were  in  force  be  ore  the  Ucifed  iS  atea 
ui-urped  this  jurisdiction  were  in  fact  found  to  be  si  llicient. 
That  the  evil  was  practically  removed  under  ihem  before 
these  postal  laws  were  ptssed,  and  to  those  state  laws,  or  to 
others  which  the  people  msy  hav  a  rational  knowledge  and 
control  of,  I  propose  lo  return.  1  leave  the  matter  to  ihem. 
The  editor  has  not  shown  how  otherwise  the  Constitution 
and  our  liberties  can  be  preserved, 

V.  The  editor  is  under  similar  misctppreJiens'on  in  resjard  to 
the  position  of  Liberals  on  the  subj-^ct  of  obsc  ^nity.  B  c  iuse 
they  do  not  deem  it  necessary  to  throw  overboard  the  Cjn- 
stitution  and  all  their  liberties  to  get  it  punished,  he  repre- 
seiiU  them  as  in  favor  of  i^  and  so  has  been  the  cause  and 
source  of  unlimited  misrepresentntion,  if  not  of  slander.  He 
says,  for  instance,  in  i'^lics:  ''Freedom  of  Vie  presi  covers 
and  includes  the  legal  r'gJd  typuLsh,  circulate,  and  mail  real 
obscenity !  This," he  ?ays,  "'is  exactly  whdt  I\Ir.  VVt>k». man's 
argument  means  so  far  as  the  mails  are  concern*  d" 

Again,  when  1  tried  to  thow  that  the  "  pncciples  "  under- 
lying the  discussion  were  ommon  to  us  both — viz  ,  that  both 
"were  in  favor  of  liberty  and  opposed  to  obiceniiy,"  and 
that  the  real  object  was  to  diecaver  the  l»ue,  lawful,  and 
practical  way  to  secure  the  first  and  ro  avoid  or  repress  the 
other — he  will  hav  none  of  it.     He  replies  indignantly: 

"He  [Mr.  Wakeman]  is  greatly  mist^k-n  in  imigininac  that 
there  is  'no  material  differences  as  to  "  principles."  '  ile  de- 
clares that  *  all  are  in  favor  of  liberty  and  opposed  to  obscen- 
ity.' It  is  true  that  all  Liberals  are  in  favor  of  liber'y,  bat 
it  is  not  true  ihnt  all  Liberals  are  opp  )sed  to  obscenity.  C  in 
a  man  be  said  lo  be  opposed  to  murder  who  dernx'^'ds  ihe 
repeal  of  all  or  any  of  the  laws  which  puni-h  i'  ?  We  cer- 
tainly think  not.  The  trouble  with  '  repeal '  is  thai  i'-  would 
abrogate  some  or  all  of  the  laws  which  punish  the  crime  of 
circulating  obscenity,  and  \hereby,  nomat^Br  what  Xhttiaten- 
Hon,  does  in/act  protect  and  foster  that  cr  me.  li  there  is 
any  real  answer  to  this,  let  us  by  all  means  hav  it." 

Certainly.  You  shall  hav  it;  but  it  seems  strange  that 
any  answer  should  be  needed.     Liberal  people,  and  all  sen- 


ON  THE  COMSTOCK  LAWa  43 

sible  people,  nve  not  in  favor  of  crimes  because  they  want 
them  cli^cove^eJ  and  puaishtd  coariiiuiionally,  by  the 
proptr  auhori  ies  provided  by  la^v  lor  that  purpose,  and 
by  methods  that  will  not  work  f  dr  greater  harm  to  society 
than  the  injary  of  the  crimes  ibemseives.  There  is 
nothing  so  dangerous  as  a  panic.  The  editor  seems  not 
to  hav  recovered  from  ihe  ob?cenity  panic  froai  which 
the  whole  country  was  suff  ring  as  iho  re-ult,  of  a  few  sea- 
saiionul  ijew.-paper  articles  and  tome  real  cause  in  1872,  and 
which  iia^e  us  (Jom>tOLk  aiad  his  laws  af.er  tae  real  evil 
had  been  removed  by  the  6ta  e  laws  and  public  opinion,  as 
1  btLfcve  wi  1  always  be  the  case. 

The  editor  condemns  us  upon  a  very  amusing  "principle." 
If,  he  aigue?,  a  Ihing  is  very  wrong,  then  it  is  a  crime,  and 
then  it  has  no  rights  anywhere,  or  when,  or  how;  and  aoy- 
b  )dy  msy  puoisU  it  in  any  way,  Uwful  or  not;  and  if  any 
one  does  not  do  so  or  favor  doing  s<',  ihen  he  ackooivledgjs 
thit  the  crime  has  *'  legil  rights,"  irid  he  favors  aad  fosters 
it  whether  he  intends  to  or  not. 

This  feels  to  me  Lke  the  logic  of  Judge  Field's  opinion, 
and  1  fear  the  editor  h^s  ab  orb-d  it  from  tbal  soarce,  L  t 
us  try  it  on.  Lib  Is  are  very  wicktd  and  v.llaiu  »uj,  and  are 
generally  circulated  through  tje  mil-,  A'l  editor  ofieu  on 
the  mere  word  of  a  private  correfpondeot  abases  his  tre- 
mendouj  power  to  cbarge  evil  hCL?,  in;enlioa«,  and  even 
crimes  thvit  iujare  and  often  practically  ruin  and  murder 
his  victims.  1  believe  such  off'-nses  are  very  wrong— or^ 
crimes  that  make  obcenity  itself  appear  white,  anj  so  the 
laws  of  all  civiLzad  countries  declare.  Bit  shall  we  ask 
Crgress,  which  has  nohing  to  do  wi[h  it  under  the  Con- 
slituiion,  to  go  to  legislating  on  the  subj^^ct  and  to  declare 
the  mailing  of  a  libel  a  crime,  punish ib:e  with  death,  in  the 
United  Sates  courts  ;  and  to  be  discovered  by  espionage  of 
mail  matter,  and  induced  by  decoy  ?  Or  shall  we  resort  to 
lynch  and  mob  law  ?  Cerfainly  not.  We  will  hav  the  states 
make  reasonable  and  sensible  laws  on  tiie  subj  ?ct,  and  will 
try  to  have  those  laws  lea^onably  and  effective  y  enforced 
by  the  proper  courts  and  jaii*>s  of  the  vicinage.  Sj  we  di-al 
with  for<^ery,  treason,  swindling,  and  many  othtr  crimes  in 
the  commission  of  which  the  mails  are  constantly  ustd. 
Yet  because  we  punish  these  crimes  only  through  the  states, 
do  we  favor  or  foster  them? 


44  REPLY  TO  THE   INDEX 

So  as  to  murder,  to  which  the  editor  refers.  Many 
excellent  persons  believe  that  society  has  advaaced  so 
far  that  the  death  penalty  for  it  does  more  harm  thaa 
good,  t-.nd  they  a  k  its  abohtion;  ba*,  are  they  therefore 
ia  favor  of  murder  ?  Not  long  ago  every  lelony  was 
punished  with  death.  The  scaffolds  were  constantly  hung 
with  victims  or  red  with  blood.  Civilizatioa  hiS  been 
measured  by  the  abolition  of  these  penalties,  and  cherishes 
the  memory  of  those  who  labored  for  their  abolition.  Nov? 
are  we  to  be  told  that  they  did  it  all  because  they  wished  to 
favor  and  foster  the  crimes  ?  or  tbat  they  did  so  in  fact  ? 

When  tbe  editor  recovers  from  his  panic  he  will  see  the 
absurdity  of  all  this,  and  will  regret  that  he  said  that  "all 
Liberals  are  not  opposed  to  obscenity."  Such  charges 
should  not  be  made  upon  mere  inferences,  for  they  are  mis- 
understood. The  editor  began  this  discusaioa  by  saying 
that  "  we  dj  not  imagine  that;  Mr.  Tucker  [Mr.  Hey  wood's 
champion]  is  any  more  in  favor  of  obscenity  than  anybody 
else."  Certainly  after  that  certificate  he  ought  to  give  the 
rest  of  the  Liberals  a  clean  bill  of  health,  even  thoagh,  in 
the  words  of  Mr.  Parton,  they  do  go  for  "immediate  and 
unconditional  repeal "  of  the  Comstock  Postal  laws,  "be- 
cause they  are  unconstitutional  and  wrong  in  every  way, 
and  pernicious  in  many  ways." 

Wnen  the  euMor  preaches  on  the  enormity  of  obscenity, 
as  hi  does  so  eloquently — I  will  not  say  that  he  does  it 
"merely  "  as  an  ex-parson — I  listen  gratefully  and  reply  only 
from  the  *'  amen  corner;"  and  it  is  hardly  fair  for  him  to  rep- 
resent me  as  an  obscenist  because,  '  merely  as  an  attorney  " 
or  otherwise,  I  try  to  explain  to  him  what  the  Constitution, 
law,  and  common  sense  on  this  subject  really  are.  Whea 
he  is  content  to  rest  his  zsal  for  purity  upon  them  I  shall  be 
with  him. 

VI.  The  editor  is  under  misapprehension,  also,  as  to  what 
the  people  expect  of  the  Liberal  party.  It  is  not  "sound  in 
principle  or  policy  "  for  a  Liberal  party  to  become  the  advo- 
cates of  unconscitutlonal  laws,  pernicious  espionage,  or  in- 
quisitioas,  which  hav  been  dictated  by  "  religious "  zeal  or 
hypocrisy.  To  curry  favor  with  an  obscenity  panic  is  busi- 
ness that  can  be  better  and  safely  left  to  Mr.  Comstock  and 
bis  friends.  We  hav  no  call  to  compete  with  them  ia  such 
rivalry,  and  shall  gala  nothing  but  contempt  for  the  attempt. 


ON   THE   COMSTOCK   LAWS.  45 

The  "awakened  conscience"  of  the  whole  people  is  in 
favor  of  constitutional  liberty  and  common  sense  on  this  whole 
subject.  The  Liberals  are  the  natural  lealers  of  this  senti- 
ment and  movement.  If  they  know  enough  to  advance  them, 
Ihey  wijll  become  the  vindicators  af  the  rights  of  the  peop'e 
and  of  Man.  They  will  stand  forth  as  a  moral  and  politic  il 
power  in  the  land.  If  they  fail  in  this  crisis  they  will  hav 
no  sufficient  reason  for  their  existence.  They  will  struggle 
along  scarcely  worthy  of  the  notice  or  of  the  contempt  of 
their  opponents.  L3t  them  take  the  watchwords,  Liberty 
AND  Purity,  now  and  forever,  one  and  inseparable  I 
The  future  will  then  find  in  them  the  great,  because  the 
reforming,  growing,  and  moral,  influence  of  the  country; 
for  the  free  and  the  pure  will  certainly  "inherit  the  earth." 

New  York,  October  10, 1878. 


68  heplt  to  the  index 

THE  E]T5]7IOISAI>ITY  OF  REFORM. 

•'CRUSniNQ   RE/VSOXS"   FOU  nEPEA.L 
BY  T.  B.  WAKEMAN. 

To  the  Editor  of  Tlie  Index:  I  regret  more  than  ever 
ttiat  my  answer  to  The  Index  crinci^ms  did  notappeir  ia 
your  lust  issue  as  intecded,  for  if  fairly  cods  dered  it  would 
ceriainly  have  saved  tLe  editorid  th^t  did  appear.  You 
could  DOt  have  then  written  a3  follows: 

*'  To  c'emaud  that  there  shall  be  no  laws  against  the  mail- 
ing of  obscene  literature  is  necessaiily  to  demand  that  ihat 
crime  shall  go  UDpunished  ;  and  to  demand  ihat  crime  shall 
go  unpunished  is  a  glaring  violaiion  of  political  morality." 

Here  you  assume  two  things  which  you  have  nt-vir 
proved,  and  the  contrary  of  which  was  clearly  shown. 

1.  The  simple  mailing  of  a  thing  i.^  not  a  crime  and 
Congress  cannot  create  it  into  "  a  crime."  As  Henry  Clxy 
said  as  to  "incendiary"  literature,  it  is  all  h«rmles<  in  tie 
Postcfflne.  It  is  the  ''' circulation  o>it  of  tie  P .U  tffice"  that 
makes  the  offense.  And  that  "crime  "  must  be  discovered  and 
punished  just  as  libels  and  all  other  crimes  are  by  the  states 
and  not  by  the  General  Government  which  has  no  Constitu- 
tional power  over  them  whatever. 

2.  Y'ju  assume  that  those  who  favor  the  repeal  of  these 
•'  Postal  Laws"  as  ULCcnstitational,  incmoral,  "  wrong  in 
every  way  and  pernicious  in  many  ways,"  necessarily  de- 
mand that  the  circulation  of  obscenity  shall  go  unpunished, 
and  this  you  say  is  the  position  of  *'  repeal." 

Now  the  exact  reverse  of  this  is  the  truth. 

The  fact  is  that  all  the  obscenity  there  was,  was  and  could 
and  can  only  be  suppressed  by  state  laws.  The  mail.ng  and 
eve-y  form  of  circuUlion  can  only  be  reached  by  them. 
Tnis  was  all  pract  c»lly  done  before  the  Comstock  posial 
laws  were  passed  in  1878.  Only  the  stnte  laws  that  s  riUe 
at  the  root  and  reach  the  printing,  manufiic'ujr,  and  cir- 
culalioQ  in  every  form,  including  cypresses  and  i^-e  mails,  can 
be  «  ff  ciual.  Postal  laws  cannot  prevent  the  ciicalalion  of 
obscenity,  for  it  has  a  hundred  means  beyond  them.  There 
mu^:t  be  state  laws  ;  they  were  efficient — why  not  continue 
to  use  them  until  they  fail  ?  All  these  postal  liws  have  done 
is  to  introduce  ''espionage  and  decoy,"  which  have  out- 


ON  THE   COMSTOCK   LAWS.  59 

raged  justice,  liberty,  and  morality  in  pretencilDg  to  punish 
"crimes"  they  have  produced  or  induced. 

You  choose  to  leprescnt  Ihe  position  of  those  who  favor 
repeal  as  *'  utterly  immoral."  Thu3  you  zak  to  f lighten 
vhe  uurcisoniDg  and  Ihe  timid.  Such  misrrprcsenta'ion 
may  delight  your  orihodox  oppon^nt^  like  the  ''  SMesman" 
but  it  should  make  the  fair  and  judi.  ious  gritve.  When 
you  delight  that  paper  cxpr<  ssly  established  to  ovc(  throw  ihe 
League,  and  put  God  in  the  ConstituMon,  can  you  not  see 
that  you  are  in  the  wroD«f  ?  Your  course  giv3  the  "  ortho- 
dox ''  all  Ihey  want,  to  wit,  the  C^n^titut'on-l  power  to  dis- 
pose of  free  thought  and  the  liberties  of  the  people  as  they 
wish.  Tbey  always,  the  moj'>rity,  will  consult  iheir  views 
and  taste?,  and  not  yours  in  the  disposal.  All  L  ber  J  liter- 
ature, in  the  words  of  Judge  Field's  Opinion,  i^  "deemed 
injurious  to  th-^  pubUc  mora's  "  in  their  minds.  This  is  ihe 
time  for  meditation  over  the  fate  of  the  tilly  sheep  who 
trusted  to  the  flitttry  and  promises  of  the  wolves  iostedd 
of  their  own  faithful  dogs  rnd  fold. 

Now  as  to  the  morality  q  .cation.  You  hav  stated  rx'ictly 
the  reverse  of  the  truth.  The  cause  of  "  gcn-iine  morality  m 
politics,  freedom,  and  viriue"  which  the  Lesgne  wa=i  de- 
signed to  e«iablish,  mfike  it  plainly  nf  cepsary  for  ail  triends 
of  the  Leaguo  to  vo  e  for  the  icpeal  of  thf  j«e  "  wt'^pk  "  and 
"  pernici<;us  "  laws.  This  is  the  only  m«»r\l  pusitiox. 
Wnen  the  fcg  of  metaphysical  declaojaliou  cJcars  away, 
these  solid  moral  tnnhs  remain  : 

1.  It  U  gross  "  immorality  in  politics  "  to  try  to  violate 
and  prostitute  the  Contliiution  and  lavtsof  our  country  lo 
p  jrp  )ses  the}'  were  never  intended  to  cover,  and  thereby  ; 

3.  To  brtak  down  the  only  protection  to  ]ii)eriy  our 
fa' hers  gave  us,  so  that  the  freedom  of  thought,  of  .«ipc(c'^, 
of  the  presp,  acd  even  of  our  property  from  6^  zure,  shtiil 
m'  aa  no  raoie  than  the  whim  of  a  msijoriiy  in  CocgreJiS, 
vvh  ch  the  *'  orthodox"  can  always  control. 

3  It  is  immoral  to  destroy  our  t.ae  post-(  fS-^e  by  estab- 
li^^h'.ng  an  e^pionoge  over  it  and  the  sent  men's  of  ihe  peopi**, 
thv.s  taking  away  the  liberty,  cqialry,  atid  coufilcnce  of 
the  people  before  and  in  the  goveraa«ent  ;  aa  the  laws  in 
question  do  and  mu&t  do  to  be  of  any  use  at  all. 

4  It  is  immoral,  and  *•  wickedly  wrong,"  to  pas^  laws 
that  can  be  executed  only  by  "  decoy,"  so  as  to  make  crime 


60  REPLY  TO  THE   INDEX 

In  order  to  punish  it  ;  as  these  laws  do  and  must  do,  in  the 
interest  of  oflBcials,  sects  and  agents. 

5.  It  is  "immoral  in  politics,"  and  in  every  "way,  to  pre- 
tend that  Congress  can  create  new  crimes  contrary  to  the 
Constitution,  out  of  the  simple  act  of  mailino:  an  inclosed 
paper,  and  that  it  can  thus  acquire  unlimited  Federal  crimi- 
nal jurisdiction  over  the  lives,  liberty,  and  property  of  the 
people. 

6.  It  is  immoral  to  represent  and  teach  that  good  can 
come  by  making  crimes  and  punishing  them  without  regard 
to  the  Constitution,  and  in  violation  of  the  rights  and  liber- 
ties of  the  people. 

7.  It  is  immoral  to  add  to  and  foster  the  immorality  of 
obsceuity  by  pretending  that  it  can  be  suppressed  by  any 
post  office  laws,  when,  in  truth,  they  cannot  reach  it,  and  can 
only  add  to  that  "  crime  "  the  guilt  of  espionage,  decoy,  and 
illegality,  while  it  can^only  be  practically  and  legally  sup- 
pressed by  state  laws,  which  will  reach  i.'s  printing,  manu- 
facture, and  circulation  in  every  possible  way,  as  they  hav 
done  when  enforced,  for  one  hundred  years. 

8.  It  is  immoral  and  fraudulent  ("  whatever  the  intention 
of  the  parties  may  be")  to  continue  to  p'pres-nt  that  *'re- 
form  ^ '  CAn  gt-t  rid  of  the  ut^ lawfulness,  and  immoral  and 
pernicious  const  q  lences  inherent  in  these  postal  laws,  with- 
out being  able  to  show,  or  even  trying  to  show,  how  it  can 
be  done. 

9.  It  is  immoral  to  represent  that  the  liberties  of  the  peo- 
ple are,  or  can  be,  as  safe  under  the  usurped  and  irresponsi- 
ble criminal  jurisdiction  of  the  Federal  Government  as  tbey 
would  be  in  the  states  and  before  courts,  and  officers,  and 
juries  of  the  vicinsge. 

10.  It  is  "  immoral  in  politics  "  and  in  every  way  to  make 
the  Liberal  Leagrue  an  instrument  to  sacrifice  the  real,  per- 
manent, conf^ti;ulional  rights  and  liberties  of  the  people  to 
a  cans^eless  obscenity  panic,  goiten  up  chiefly  by  those  who 
wish  now  to  use  it,  by  meanj  of  these  very  Uws,  to  crubh 
libcr'ry  «nd  Liberalism  out  of  existence. 

11  It  13  immoral  to  ask  the  Liberal  League  to  become  the 
accomplice  of  its  adversaries  in  betraying  the  libiiriies  of 
the  p:ople. 

Thie  is  enough  for  those  who  will  stop  and  think.  For 
thoEC  moral  and  "crushing  reasons,"  and  Jpecause  "  tke  Lib- 


ON   THE   COMSTOCK   LAWS.  61 

eral  League  is,  as  you  say,  shaped  symmetrically,'"  it  must 
stand  by  "  genuine  morality  in  politics  and  freedom  "  by 
voting  for  the  repeal  of  those  laws  ;  because  they  arc 
really  immoral,  futile  for  good,  the  inevitable  cause  of  out- 
rages, injustice,  and  vPTong — and  in  every  way  "  inconsist- 
ent with  the  genius  of  free  institutions,"  as  the  League  de- 
clared at  Philadelphia. 

The  five  "crushing  reasons"  in  your  last  editorial  are  ex- 
actlj*  reversed  by  the  above  considerations,  and,  like  btones 
too  heavy  for  the  heaver,  roll  back  and  crush  the  one  who 
moved  them. 

Yes  I  You  are  right ;  the  League  "cannot  afford  to  deny 
its  own  foundations."  "  It  is  built  upon  respect  for  moral- 
ity," not  upon  hypocrisy,  nor  so-called  "respectability,"  nor 
the  breath  of  Sirs.  Grundy,  but  upon  good,  true,  substan- 
tial, common-sense,  practical,  constitutional  "morality  in 
politics  "  and  out,  "  and  on  freedom"  as  the  only  cause  and 
foundation  of  "  virtue."  If  the  Liberal  League  is  true  to  its 
name,  its  cause,  and  itself,  it  will  be  not  a  sham  nor  a  trai- 
tor, but  a  power  to  eflect  these  results  by  the  repeal  of  those 
laws  which  violate  them  all.        Yours  respectfully. 

I^ew  York,  Oct.,  17,  1878. 


[Truth  Seeker  Tracts.  No.  150. J 


The  Liberty  of  Printing. 


AN  ADDRESS  AT  THE  SECOKD  ANNUAL  CO^GREFS  OF  anR 
NATIJNAL  LIBERAL  LEAGUE,  AT  SYRACUSE,  OCT.  iQ, 
1878.  BY  THE  nON.  E.  P.  HURLBUT,  OF   ALBANY,  N.  Y. 

Mu.  Phesident.  and  Brethren  op  the  National 
Liberal  League— Ladies  and  Gentlemen:  My  tulject 
is  "  The  Libeily  of  Pnuiing  " — i  matter  ot  tae  utmost  coa- 
cern  to  an  enlightened  age,  and  priceless  in  a  laud  of  f:ee- 
dom  ;  and  should  I  stumble  under  its  weight,  by  reason  of 
age  Oi  infirmity,  I  trust  that,  in  your  charity,  I  may  hav 
ertdit  at  Itast  for  good  intentions,  which  are  considtred  by 
some  as  cot  a  mean  order  of  talents. 

The  Liberty  of  Printing — what  is  it?  It  is,  spe^ikifg 
figtiratively,  to  enjoy  an  intellectual  atmosphere  as  free  as 
ti,e  material  cne  which  we  breathe,  being  on  our  guard 
against  impurities. 

It  is  to  stimulate  acd  be  stimulated  by  the  oxygen  and 
ozone  of  the  cultured  human  intellect,  avoiding  the  deadly 
maliiia  lurking  in  the  marshes  and  sewers  lying  at  the  base 
of  the  depraved  mind. 

It  is  the  parent  of  science,  the  educator  of  our  race,  the 
unfettered  moral  and  intellectual  giant,  under  whose  tieud 
aod  at  whose  call  mankind  hav  torn  the  serf's  collar  from 
their  necks,  broken  the  chains  of  kings  and-  emperors,  and 
compelled  pope,  prelate,  and  priest  to  giv  a  reason  for  the 
faith  that  is  in  them,  or  thenceforth  to  resign  their  leadei- 
ship  of  mankind. 

In  France  it  demolished  the  Bastile;  in  Spain  it  abolihhed 
the  Ii  quisition,  and  in  New  Eaglnnd  Cotton  Mather  as  an 
'*  institution  ;'*  alihough  the  la'ter  died  hard,  maintaining 
with  his  latest  bieath  "that  there  is  a  God,  a  devil,  and 
witches." 

Public  sentiment,  stimulated  by  the  press,  abolished  the 


2  THE    LIBERTY    OF    PRINTINO. 

slave  trade  in  Great  Britain,  slavery  in  her  West  India  colo- 
nies, and  finally  slavery  in  these  United  S*ites.  It  consoli- 
dated Italy,  and  thut  up  the  vicegerent  of  heaven  in  the 
Vatican.  Without  the  liberty  of  printing,  a  democrat'c 
republic  cannot  exist;  a  plea  for  the  former  is  a  plea  for  its 
life. 

Thus  knowledge,  science,  virtue,  human  enlightenment, 
and  progress — law,  order,  and  free  government — are  found- 
ed on  books,  as  the  world  was  once  fabled  to  rest  on  Atlas. 
We  hav  been  taught  to  reverence  the  Book  ;  let  us  rather 
hold  all  good  books  to  be  sacred. 

But  all  books  are  not  good;  and  here  we  encounter  a  diffi- 
culty which  the  wisest  philosophers,  jirisfs,  and  statesmen 
hav  been  greatly  embarrassed  in  their  attempts  to  remove. 

Attend  to  one  of  the  most  gifted  of  mankind,  treating  of 
this  subject.  "I  deny  not,"  says  he,  "  but  that  it  is  of  the 
greatest  concernment  in  the  Church  and  Commonwealth  to 
hav  a  vigilant  eye  how  books  demean  themselves,  as  well  as 
men,  and  thereafter  to  confine,  imprison,  and  do  sharpest 
justice  on  them  as  malefactors:  for  books  are  not  absolutely 
dead  things,  but  do  contain  a  progeny  of  life  in  them,  to  be 
as  active  as  that  soul  whose  progeny  they  are  ;  nay,  they  do 
preserve  as  in  a  vial  the  purest  efficacy  and  extraction  of 
that  living  intellect  that  bred  them.  I  know  they  are  as 
1  vely  and  as  vigorously  productive  as  those  fabled  dragon's 
tteth,  and,  being  sown  up  and  down,  may  chance  to  spring 
up  armed  men. 

"And  yet,  on  the  other  hand,  unless  wariness  be  used,  aS 
good  almost  kill  a  man  as  a  good  book ;  who  kills  a  man 
kills  a  reasonable  creature,  God's  image  ;  br^'  he  who  de- 
stroys a  good  book  kdls  reason  itself —  kills  the  image  of 
God,  as  it  weie,  in  the  eye.  Many  a  man  livs  a  burden  to 
the  e^rth  ;  but  a  good  book  is  the  precious  life-blood  of  a 
master  spirit,  embnlmned  and  treasured  up  on  purpose  to  a 
life  beyond  life.  It  is  true,  no  age  can  restore  a  life,  where- 
of, peihaps,  there  is  no  great  loss;  and  revolutions  of  ages 
do  not  oft  recover  the  loss  of  a  rejected  truth,  lor  the  want 
of  wbich  whole  nations  fare  the  worse.  We  should  be  wary, 
Ihertfore,  what  persecutions  we  raise  against  the  living 
labors  of  public  men  —  how  we  spill  that  seasoned  life  of 
man,  preserved  and  stored  up  in  books;  since  we  see  a  kind 
of  homicide  may  be  committed,  sometimes  a  martyrdom  ; 


THE    LIBERTY    OF   PRINTING.  8 

and  if  it  extend  to  the^hole  impression,  a  kind  of  massacre, 
whereof  the  execution  ends  not  in  the  slaying  of  an  elemental 
life,  bat  strikes  at  the  ethereal  and  fifth  essence,  the  breath 
of  reason  itself — s'a>s  an  immortality  rather  than  a  life." 

Thus  wrote  that  great  scholar,  statesman,  and  poet,  John 
Milton,  on  "The  Liberty  ©f  Unlicensed  Printing."  Ilia 
argument  was  designed  to  overthrow  a  statute,  then  in  full 
force  in  England,  "To  regulate  printing,  that  no  book, 
pamphlet,  or  paper  shall  be  henceforth  printed,  unless  the 
same  shall  be  first  approved  and  licensed  by  such,  or  at  least 
one  of  such,  as  shall  be  thereto  appointed."  The  statute  once 
abolished,  he  claimed  that  all  printing  should  be  free — ex- 
cept that  authors  should  be  held  responsible  for  the  abuse  of 
their  freedom;  or,  to  use  his  own  words,  that  the  law  should 
**  thereafter  confine,  imprison,  and  do  sharpest  justice  on 
them  as  malefactors,"  for  the  printing  of  offensive  books. 

How  are  we  to  enjoy  the  benefit  of  good  books  without 
incurring  the  evil  of  bad  ones? 

In  the  olden  time  it  was  attempted  to  draw  the  line  in 
Greece;  and  books  which  were  regarded  as  Atheistical  and 
blwphemous,  or  libelous,  were  burned,  and  the  authors 
banished.  Of  books  tending  to  voluptuousness  they  took 
no  heed  ;  and  an  ancient  poet  complained  that  for  this  rea- 
son there  was  a  dearth  of  chastity. 

Ancient  Rome  did  but  little  on  the  subject  ;  some  books 
were  condemned  and  burnt — books  that  were  blasphemous 
— but  a  censorship  was  never  established  until  after  the  in- 
vention of  printing,  when  the  popes  were  alarmed  at  its 
influence  in  the  diffusion  of  knowledge.  They  prohibited 
the  printing  of  certain  heretical  books,  and  foibade  their 
subiL'cts  to  read  them,  by  their  famous  Index,  under  pain  of 
censure  or  excommunication. 

This  censorship  spread  ever  Europe  like  a  malarious  at- 
mosphere, until  even  liberty-loving  Ecgland  at  last  em-  < 
braced  it.  But  as  she  was  the  last  to  adopt,  so,  let  it  be 
remembered  to  her  honor,  that  she  was  the  first  to  abolish 
it  ;  and  now,  so  far  as  I  know,  the  main,  if  not  the  only 
restrictions  which  are  in  practical  operation  on  the  liberty 
of  the  press  in  that  country  are  in  reference  to  libels  on 
private  character,  and  obscene  books,  prints,  drawings,  and 
pictures. 

In  tlie&e  United  States  there  has  never  existed  a  censor- 


4  THE    LIBERTY    OF   PRINTING, 

ship  of  the  press  ;  but  of  late  it  has  been  compelled  to 
attend  to  a  grim  farce,  in  which  a  noiable  Paul  Pry  has  been 
the  sole  actor.  Such  Las  been  ihe  success  of  his  perform- 
ances  that  he  has  completely  "  brought  dowu  Ibe  house  " — 
but  mainly,  1  trust,  on  his  own  head.  ;Now,  while  I  do  not 
object  to  the  ostensible  aiaa  and  obj.^cc  of  this  piocenure, — 
to  wit,  the  suppression  of  ob.-cene  l.teratuie — I  piotesi,  in 
the  name  of  liberty  and  human  rights,  sgHiDht  ibe  comse 
and  manner  of  it,  as  low  and  mean,  too  cunning  to  be  inno- 
cent, loo  sharp  to  be  honest,  oppressive,  and  at  war  with  the 
whole  theory  of  administration  in  a  free  government. 

Let  us  examine  this  subject,  with  a  view  to  secure  the  just 
freedom  of  the  pres?,  and  b.^,  the  same  time  to  pievt-ni  so 
much  of  its  licentiousness  as  is  practicable.  1  know  this  is 
delicate  ground,  and  is  rendeied  doubly  so  under  our  com- 
plicated system  of  government;  so  ihat  we  need  all  the 
lights  of  the  law,  and  of  human  experience  and  philosophy, 
in  order  to  achieve  success. 

Now,  as  I  have  said,  Eogland  intends  th'it  her  press  .s-hall 
be  free  ;  and  yet  in  the  reign  of  her  present  bentficent 
queen  she  has  passed  statutes  again*t  obscene  books,  pic- 
tures, etc  ,  and  endeavored  to  suppress  them. 

The  wilful  exposing  of  an  obscene  print,  or  indecent  exhi- 
bition, is  an  indictable  offense  at  common  law,  lankiog 
with  the  indecent  exposure  of  the  person.  As  there  is  no 
absolute  freedom  for  man  in  the  social  state,  so  there  is  and 
cm  be  none  for  the  press.  All  social  and  moral  freedom  is 
limited  by  ii«?hts.  There  ia  a  natural,  and  there  is  a  civil 
freedom  ;  and  the  latter  only  is  accorded  to  man  in  the 
social  state.  The  first,  if  he  were  ll^e  only  ape-like  man 
existing  at  the  beg  nnicg  of  our  evolution,  was  absolu  eiy 
free.  But  the  moment  Le  came  to  have  peeis,  he  lound  he 
had  to  conduct  within  certaiu  limits,  wh;ch  resptcied  tbe 
rights  and  feelings  of  other?,  or  he  would  be  treated  not  as 
a  lespeclable  Adam,  but  n-ther  as  the  first  '*iraa.'p.'' 

At  ieng-h,  afier  long  ages  of  experience  in  the  soc'al 
state,  the  idea  of  not  doirg  to  another  what  he  would  not 
have  done  to  himself  becau-c  seated  in  the  fibres  of  his 
brain,  aLd  was  trans^mitted  by  herediiy,  so  that  now  ihe 
essence  of  bll  morality  nnd  all  law  may  be  summed  up  in  a 
precept  of  eight  words,  and  can  be  taught  without  express 


THE    LIBERTY    OF   PRINTIXQ.  6 

revelation  or  a  burdensome  priesthood,  to  wit,  Be  just  and 
kind  to  all  sensitke  beirgs. 

There  fs,  as  1  was  saying,  no  liberty  in  the  social  state 
which  has  not  respect  to  ottiers'  rights  and  feelings.  You 
mny  not  slander  a  man  or  woman  without  being  amenable 
to  the  law  ;  and  yet  this  responsibility,  which  is  a  decidtd 
infiingemenl  of  the  absolute  freedom  of  speech,  obtains  in 
every  state  in  the  Union. 

The  constitutions  of  these  states  all,  however,  declare 
that  speech  f-hall  be  free  ;  but  by  what  language  do  they  de- 
clare it?  In  thi^ — to  wit:  "Every  citizen  may  freely 
speak,  write,  and  publish  bis  spntiments  on  all  subjects, 
beivg  refponsiblefcr  the  aliis".  of  tlat  rigid  ;  and  no  law  {•hall 
be  passed  to  restrain  or  abridge  ihe  liberty  of  speech  or  of 
the  press."  And  in  the  New  York  Cons  itution  it  is  written 
that  **  in  all  prosecutions  or  indictments  for  libels,  the  truth 
may  be  given  in  evidence,"  clearly  showing  that  the  consti- 
tutional freedom  of  speech  and  of  the  press,  thus  secured 
to  every  citizen,  was  to  be  limited  by  the  rights  of  others  ; 
that  l.belers  should  be  held  responsible  as  for  an  abuse,  and 
that  the  jast  restraint  and  punithment  of  the  licentious  ex- 
ercise of  that  freedom  was  not  to  be  legarded  as  a  violation 
of  it. 

If  by  the  words,  *•  being  refponsible  for  the  abuse  of  that 
right,"  it  were  intended  to  limit  such  abuse  to  libils  on 
private  character,  as  some  contend,  why  did  not  the  framers 
of  the  Constitution  say  so  in  exact  words,  instead  of  em- 
ploying a  phraseology  which  implied  a  great  deal  more  ? 
They  were  familiar  with  Ihe  common  law,  which  went  fur- 
ther, and  condemned  as  offeoders  as  well  the  authors  of 
ohk»cene  prints,  drawings,  and  pictures  as  others  who  cfP^nd- 
ed  agains^t  good  morals  and  manners. 

The  Constitution  of  Louisiana  in  the  days  of  Edward 
Livingston  declared  that  "  Printing  presses  should  be  free 
to  every  person  who  undertakes  to  examine  the  proceedings 
of  the  Legislature,  or  any  branch  of  the  government ;  that 
the  free  communications  of  thoughts  and  opinions  are  one 
of  the  inva'uable  rights  of  man,  and  that  every  citizen  may 
f-ffly  peak,  wrir.e,  and  pdnt  on  any  subject,  being  responsi- 
V.efur  t"<e  abuse  of  that  liberty.'* 

Mr.  Livingston  was  appointed  a  commissioner  to  frame 
a  criminal  code  under  this  Constitution.    He  was  a  truly 


6  THE    LIBERTY    OF    PRINTING. 

great  man,  statesman,  and  jurist.  No  American  laxvyer 
ever  enjoyed  a  higher  reputation,  either  at  home  or  abroad. 
He  was  a  firm  supporter  of  the  liberty  of  the  press,  and  his 
code  provided  penalties  against  its  infringement.  Ue  was 
liberal  in  his  views  of  religi-rn,  and  expressly  provided,  for 
the  first  time  in  this  country ,  that  the  religious  opinions  of 
a  witness  should  neither  affect  his  competency  nor  his  credi- 
bility. His  code  as  reported  was  the  admiration  of  jurists 
and  publicists  all  over  the  world,  and  will  endure  as  a  per- 
petual monument  to  his  fame.  I  feel  the  utmost  assurance 
that,  in  fracaing  the  law  on  this  subject,  Mr.  Livingston 
weighed  most  critically  all  the  objections  that  can  be  raised 
against  a  law  punishing  the  authors  of  obscene  prints. 
While  deliberating  on  the  provisions  of  the  common  law  as 
to  the  offenses  of  a  moral  nature,  he  had  doubts  and  misgiv- 
ings as  to  what  portion  of  them  he  would  embody  in  his 
code;  and,  "while  yet  he  had  formed  no  decision,"  he 
wrote  to  a  learned  doctor  of  the  civil  law,  expressing  his 
doubts  and  difficulties,  asking  for  advice  and  suggestion,  and 
Baying  that  one  of  his  embarrassments  arose  from  "  the  dif- 
ficulty of  defining  the  offense."  He  objected  to  the  "gen- 
eral expression  of  the  English  law,"  as  *'  putting  too  much 
power  in  the  hands  of  a  fanatic  judge  with  a  like-minded 
jury."  But  after  full  reflection,  he  at  last  settled  upon  the 
following  as  a  safe  and  salutary  law,  and  reported  it  to  the 
Legislature  of  Louisiana  for  enactment. 

Title  sixteen  of  his  code  concerns  "  Offenses  against  Mor- 
als," and  the  second  chapter  of  this  title  provides  for  the 
punishment  of  '*  Offenses  against  Decency,"  the  first  section 
whereof  is  as  follows: 

"If  any  one  shall  make,  publish,  or  print  any  obscene 
print,  picture,  or  written  or  printed  composition,  manifestly 
designed  to  corrupt  tbe  morals  of  youth,  or  shall  designedly 
make  any  indecent  or  obscene  exhibition  of  his  person,  or 
the  persons  of  others,  by  which  pudicity  "  (modesty  or 
chastity)  "is  offended,  he  shall  be  imprisoned  not  more 
than  six  months,  or  fined  not  more  than  one  thousand  dol- 
lars, or  both;  and  the  imprisonment,  or  a  part  of  it  shall  be 
jn  close  custody." 

This  statute  he  considered  to  be  in  enti:  e  harmony  with 
the  liberty  of  the  press,  as  secured  by  the  American  Consti- 
tutions; and  I  emphatically  concur  in  his  opinion,  and  see 


^HE    LIBERTY    OP    PRINTING,  7 

now  how  wise  and  guarded  is  the  law  he  proposed.  The 
print  or  picture  must  be  "obsceiw."  The  instinct  of  every 
man  and  woman  of  ordinary  intellect  and  common  modesty 
defines  the  meaning  of  that  word.  You  seem  to  need  hardly 
any  explanrt,i-i>n  about  it,  any  more  than  you  do  to  define 
the  peculiar  odor  of  that  animal  of  which  this  country  is  so 
happy  as  to  enjoy  the  monopoly,  and  known  to  our  natural 
history  as  mepJiiiis  Americana.  Your  sense  of  smell  defines 
his  odor.  So  in  the  case  of  an  obscene  picture;  you  look  at 
it,  and  turn  away  offended,  disgusted.  You  read  the  ob- 
scene book,  and  are  shocked  in  erery  modest  fibre  of  your 
brain.  If  you  need  any  further  guide,  the  common  law 
everywhere  prevalent  will  supply  illustrative  cases. 

But  this  wise  and  cautious  law-giver  did  not;  stop  with 
the  one  word  "  obscene  ;"  the  book  or  print  must  also  be 
"  manifestly  designed  to  corrupt  the  morals  of  youth  " — the 
author  having  the  wisdom  toforsee  Ihat  any  further  abridge- 
ment of  the  liberty  of  the  press  would  woik  more  evil  than 
good  ;  while  the  suppression  of  obscene  prints,  designed, 
or  mainly  tending,  to  corrupt  the  morals  of  youths,  was 
such  a  beneficial  work  as  no  law  giver  could  properly  neg- 
lect. 

There  are  those  who  demand  that  the  statute  shall  define 
what  it  means  by  "obscenity."  With  jurors  in  general  it 
would  not  be  necessary,  and  it  requires  their  verdict  in  or- 
der to  convict.  1  confess  1  hav  not  the  capacity  to  define  it 
by  words,  so  as  to  preclude  all  possibiUy  of  error  in  the 
courts.  That  cannot  be  done  for  any  law.  Perhaps  the 
only  thing  that  can  be  done  would  be  to  specify  ctrtain 
prints  that  shall  not  be  deemed  obscene,  which  would  be 
saying  what  is  not  rather  than  what  is  obscenity.  You  see 
the  difiicnlty  when  the  law  is  applied  to  pictures,  in  which 
case  you  would  have  to  giv  illustrations,  in  order  to  be  defi- 
nite, and  your  statute  book  itself  would  become  pictorial 
and  immoral  at  once.  The  picture  defines  itself,  and  so  do 
most  obscene  prints.  A  lawyer  would  say,  after  adopting 
Mr.  Livingston's  provision,  leave  it  to  the  juries  and  the 
courts  under  the  common  law,  and  be  sure  you  have  intelli- 
gent juries  and  competent  judges. 

1  hav  no  objection,  however,  to  a  proviso,  by  which  it 
should  be  declared  that  an  agument  or  treatise  written  in 


8  THE    LIBERTY    OF    PRINTI^'G. 

sincerity  and  good  faith— in  which  no  obscene  words 
should  be  employed,  althouch  its  doctrine?,  if  carried  into 
practice,  would  hav  a  corrupting  influence — should  not  be 
deemed  within  tbe  meaning  of  the  statute  against  cb-cene 
prints;  but  I  feel  assured  that,  when  we  narrow  down  the 
cffense,  as  in  the  Louisiana  code,  we  shall  be  reasonab  y  se- 
cure from  dangerous  constructions. 

A  case  has  arisen  in  which  the  author  of  a  pamphlet, 
without  employing  an  obscene  word,  has  advocated  a  course 
of  conduct  between  the  sexes  utterly  subversive  of  civiliz  i- 
tion,  the  family,  and  the  state  ;  hading  to  a  return  to  tbe 
manners  of  the  ape-like  man,  or  rather  to  those  of  the  man- 
like ape.  It  is  a  clear  case  of  inverse  evol-jtion;  of  an  au- 
thor, as  the  phrase  is,  "exceedingly  backward  in  coming 
forward,"  and  particularly  forward  in  going  backward;  but 
I  should  pause  long  before  I  held  it  to  be  obscene  in  a  legal 
Stn  e,  or  if  so,  such  a  species  of  obsceniiy  as  the  law  cuuld 
condemn,  without  danger  of  trenching  on  the  freedom  of 
discussion  and  ihe  proper  liberty  of  printing.  1».  might  be 
indictable  in  the  couit  of  Judge  Lynch,  as  "  an  assaut  aiid 
battery  "  on  society  and  morals,  and  the  culprit  be  punished 
according  to  his  code,  which  some  are  inclined  to  legnrd  as 
an  implied  and  necessary  supplejsient  .to  the  democratic 
constitution  of  government. 

When  young  and  sanguine,  I  published  certain  essays  on 
human  lights,  in  which  1  remember  to  hav  argaed  in  favor 
of  their  natural  origin  ;  sna  among  oiher  things  1  main- 
tained that  a  man  had  a  legbl  r'ght  to  be  a  fool,  since  nature 
made  him  so  ;  but  that  society  could  not  allord  to  allow 
him  to  be  a  knave,  however  nature  may  hav  abused  him, 
and  now  that  1  am  old  I  see  no  reason  to  depart  Irom  that 
doctrine,  and  1  would  app'y  it  to  the  liberty  of  printing. 
If  there  were  nothing  else  to  be  considered  but  praciica 
b  lily,  think  what  an  army  of  martyrs  would  spring  up  in 
the  literary  world  under  a  contrary  rulel  As  the  world 
even  now  can  scarcely  contain  all  the  foolish  books,  includ- 
ing dollar  iind  dime  noveh,  so  the  prisons  could  by  no 
mt-aos  conain  thtir  au  hors  ;  and  moreover  Dime  Nature 
woud  have  to  gel  up  a  special  evolution  of  IMlsbury's  in 
ordf-r  to  supply  the  keepers  ! 

Ilere,  then,  I  take  my  &tand.    I  will  ask  no  further  limita* 


THB    LIBERTY   OP  PRINTING.  J^ 

tion  of  the  liberty  of  printing  ihan  the  co(l»?  of  Mr.  L*  vin*?:- 
stoa  crratep,  ard  I  ircline  to  arcfp!  lo  Ifsp.  It  is  in  bar- 
mony  -with  ibe  common  law,  it  is  coi  stitu  ienal  ;  it  ia 
called  lor  by  the  culiivaltd  stntimentsof  m^ik  ml;  aid  it 
is  conserrative  of  the  morals  of  youth.  If  vre  mnintain  -he 
residue  of  our  criminal  code,  1  t  us  I  y  no  mesDs  <  m-t  th^t. 

llbvlng  now  dfHWD  a  lire  of  s^paiaii  n  beiwren  the  lib- 
erty of  the  press  and  its  licentious*  abu^e  in  the  pi>^to  gov- 
ernmen^.p,  we  are  prepared  to  look  at  the  Coi'sti  ution  of  the 
Uni^f-d  States,  and  to  tee  "what  rule  is  to  obtain  in  cur  Fed- 
eral Union. 

AVe  encounter  at  once  the  provision  in  the  Constitution  of 
the  Uaited  States,  that  "  Concref s  s-haU  m  ke  no  Uw 
fibrideing  the  freedom  of  speech,  or  of  the  pre^s:"  so  ih<it 
the  qnes'jon  a^ain  rfcurp,  "What  is  this  fierdom  of  the 
press;  and  is  it  one  In  the  stHtes  and  in  the  con'f der^icy  ?  I 
hav  labored  in  vain  uoliss  I  hav  sh  >wn  tha^  it  is  not  abso- 
lute and  unlimited;  that  the  pre?<8  is  not  at  liberiy  lo  print 
false  libels  on  priv&te  cbarscler,  ror  to  publish  obscene 
prints  or  pictures.  This  would  not  be  freedom,  but  licen- 
tiousness; aod  in  is  nowhere  written  th^t  laws  cnnnot  be 
passed  by  the  proper  8uthoritie«»  restrainiig  that.  That 
which  the  state  constitutions  tnd  la^so'dau  on  this  sub- 
ject defines  the  freedom  of  the  p-ess.  Nay,  the  frwrn^rs  of 
the  coDStilutions  of  the  states  and  also  cf  the  United 
S.ates,  in  employing  the  phrase  *' freedom  of  the  prePs," 
used  it  in  the  ten-e  well  understoi  rl,  jicd  as  d»  fioed  by  the 
writers  on  the  common  law;  and  kt  us  see  whm  th^y  say  on 
the  subj  ct.  Sir  William  Blackf^tone,  the  most  a- com- 
plished  of  Ibem  a'l,  who  wrote  befoi^any  of  thee  consti- 
tu  ions  were  framed,  hf  1  Is  this  langUig*": 

•'Tde  liberty  of  the  press  is  indeed  tsseutial  to  ihp  na'nre 
of  a  free  s'ale;  but  this  consists  in  laying  no  j^Tevious 
restraints  on  puljlicatiocp,  and  not  in  fieedom  from  ceoj^ure 
for  criminal  matters  whin  published.  Every  ficeman  has 
an  ut  doubted  right  to  lay  what  fen  iment  be  pleises  before 
the  puhlir;  to  forbid  this  is  to  destroy  the  fiec^om  of  the 
pr  s>;  but  if  he  publishes  whnt  is  impn  p-^^r,  mischi-^  vous  or 
illcghl,  he  must  take  the  cons«quence8  of  his  own  tfmerity. 
To  sulj-.ct  the  press  to  the  restrictive  power  of  a  lic^^nser, 
Ki  was  f(  rmerly  done  both  before  and  since  the  R  volution, 
is  to  subject  all  freedom  of  sentiment  to  the  prejudices  of 


10  THE   LIBERTY   OF   PRINTINGr 

one  man,  and  make  him  the  arbitrary  and  infallible  judge  of 
ail  controverted  points  in  learning,  religion,  and  govern- 
ment." 

He  argues  then  in  favor  of  punishing  the  licentiousness  of 
the  press,  and  concludes  thus:  "And  to  this  we  may  add 
that  the  only  plausible  argument  heretofore  used  for  the 
restrainiDg  the  just  freedom  of  the  press,  *  that  it  was  neces- 
sary to  prevent  the  daily  abuse  of  it,'  will  entirely  lose  its 
force  when  it  is  shown  (by  a  reasonable  exertion  of  the  laws) 
that  the  press  cannot  be  abused  to  any  bad  purpose  without 
incurring  a  suitable  punishment;  whereas  it  never  can  be 
used  to  any  good  one  when  under  tke  control  of  an  in- 
fipector.  So  true  it  will  be  found  that  to  censure  its  licen- 
tiousness is  to  maintain  the  liberty  of  the  press." 

Now,  I  hold  that  the  phrase,  "freedom  of  the  press," 
means  the  same  in  the  Federal  and  the  state  constitutions, 
and  in  all  nothing  mere  than  freedom  from  previous  censor- 
ship ;  the  states,  and  not  the  Federal  Government,  ha^ijiig 
the  power  to  punish  abuses. 

And  now  assuming  that  the  states  where  the  printing  is 
conducted  by  their  laws  condemn  and  punish  obscene 
prints,  can  a  paper  containing  matter  condemned  by  such 
laws  gain  any  new  right  or  exemption  by  being  placed  in  the 
mails?  Is  it  suddenly  cleansed  there?  The  obscene  print 
was  not  free  at  its  birth,  and  can  gain  nothing  by  setting 
out  on  its  travels  through  the  mails.  The  stigma  and  the 
disability  still  rest  on  it.  It  was  never  free  (except  from  a 
licenser),  and  can  never  become  so  until  obscene  literature 
becomes  innocent  and  right  by  the  common  law  ard  the 
statutes  of  the  several  states.  And  when  that  shall  happen, 
it  will  be  of  little  consequence  what  matter  shall  be  printed 
or  mailed,  for  law,  reason,  and  morality  will  hav  departed 
from  the  land. 

It  is  a  maxim  of  the  law  that  a  man  shall  gain  nothing  by 
his  illegal  act.  A  print  that  lias  no  right  to  exist  can  claim 
no  protection  from  the  law,  which  does  not  cherish,  but 
rather  abates,  nuisances.  Shall  the  law,  then,  not  only 
protect,  but  carry  thousands  of  miles,  and  distribute  to  tens 
of  thousands  of  people,  prints  which  it  condemns  as  infa- 
mous, and  whose  authors  it  punishes  by  fine  and  '.mprison- 
menl?  Sball  the  government  become  an  accessory  after  the 
fact,  and  at  the  same  time  hold  its  lash  over  the  head  of  the 


THE    LIBERTY    OF    PRINTING.  11 

principal?  This  would  be  to  the  last  degree  unreasonable. 
The  ftate  and  Ft^deral  governments  together  constitute  a 
complete  sovtrdgrdy  over  the  press  and  the  distribution  of 
printed  matter  through  the  mails,  and  this  would  be  the 
sum  of  their  ^'om^  operations;  the  state  would  define  and 
control  the  liberty  of  the  press,  would  punish  and  condema 
obscene  prints,  and  imprison  offenders;  while  the  United 
States  would  circulate  such  prints  to  the  utmost  limits  of 
the  very  f  tate  that  forbids  and  punishes  them.  The  state 
would  fine  the  ofi^ensive  author  and  printer,  while  the  Uni- 
ted States  would  take  a  fee  from  them,  a  reward  as  carrier, 
and  assist  their  trade  in  corrupting  the  morals  of  youth. 
The  state  would  hav  acted  wisely,  but  Uncle  Sam  wwuld 
bav  played  either  the  knave  or  the  fool,  and  he  might 
devoutly  cry  '*//i  Ood  we  trust  "  forever,  and  stamp  it  holi- 
]y  on  every  poor  penoy  he  has  got,  but  he  would  share  the 
fate  of  other  hypocrites,  for  nobody  would  trust  him. 

J^^j^the  power  to  establish  post-offices,  and  post-roads, 
an^ocarry  the  mails  having  been  delegated  as  a  Federal 
power,  resides  in  the  Government  of  the  United  S  ates,  to 
the  exclusion  of  the  several  states.  In  executing  this 
power,  the  Government  is  clothed  with  a  limited  sovereign- 
ty, and  may  do  whatever  is  necessary  and  proper  or  con- 
ducive to  the  end  of  carrying  the  mails,  so  as  to  answer  the 
intent  and  object  of  tluir  inbtitution.  It  may  appoint  aad 
control  its  agents;  may  puuith  fraud,  robbery,  and  other 
offenses  which  obstruct,  hinder,  or  prevent  the  success  of 
the  mail  enterprise.  When  it  punishes  a  robbery,  or  other 
offjnse  against  the  mails,  it  is  not  for  the  purpose  of  a  gen- 
eral correction  of  the  public  morals,  or  of  enforcing  any  of 
the  Ten  C:'mmandments,  but  to  enable  it  to  succeed  in 
safely  delivering  the  mails.  It  is  the  duty  of  the  Govern- 
ment to  remove  all  obstacles  to  the  complete  and  beneficial 
exercise  of  its  power,  which  is  useful,  beneficent,  and  con- 
cerns all  the  people.  It  therefore  punishes  offenses  which 
interrupt,  prevent,  or  embarrass  its  operations,  lest  it  should 
fdU  short  and  fail  of  its  duty. 

Bat  the  power  delegated  to  the  General  Government  was 
bestowed  by  the  states,  which  made  criminal  the  printing 
and  sending  abroad  of  obscene  publications;  and  when  they 
surrendered  the  power  of  carrying  the  mails,  did  they  intend 
to  destroy  or  defeat  their  own  purposes,  and  to  arm  an 


12  THE    LIBERTY    OF   TtS.VsTV<rG, 

enemy  in  the  agent  which  they  created  that  phould  dQ^troy 
the  (fficacy  of  their  own  kw!^?  Was  it  not  expected  that 
the  power  delegated  should  be  so  (Xt^nis-eil  as  not  only  to 
be  beneficial,  but  innocent  in  i»s  operation?  that  in  re"*peot 
of  the  raatier  carried,  the  sta'es  and  the  Uaited  Stites 
fchould  act  in  concert?  that  ihe  latter  i.bould  not  dii^semiuate 
wttHi  ihe  forcopr  stamped  with  iofamy? 

Would  the  date  itself,  if  carrying  tin  rr.a'l,  imprison  the 
oh.tcene  author,  at<d  yet  carry  aitd  didnbide  his  flthy  gtcd^f 
And  sba  1  we  ho:d  to  such  a  narrow  construction  of  the 
Federal  powers  as  will  make  the  states  and  the  United  Spates 
thus  pUy  at  cross-purposes?    I  think  not. 

By  yivffing  the  mails  with  obscene  matter,  the  service  is 
made  to  ejceed  arid  overdo  its  proper  cffice;  tobehaimful 
and  a  nuii-ance  rather  than  a  benefit  to  the  people  ;  and  it 
seems  hardly  to  be  straining  a  point  to  hold  th9t,  by 
the  delegation  of  power  to  Congress  to  make  all  laws 
nece^saiy  and  proper  to  carry  into  eflfect  the  powers 
conferred  in  re!erence  to  the  miil«,  auihorify  is  4iiliM!d 
to  prevent  as  well  the  mischiefs  of  cariyicg  obscene 
litf-raiure  as  those  ari-ing  from  mail  robberv,  so  that  the 
tervice  should  be  protec  ed  i-s  well  from  the  dangers  of  ex- 
cessive, as  those  of  inadequate  performance,  and  be  not  only 
useful,  but  harmless — at  least  to  tuch  extent  as  not  to  be 
accessory  to  crime.  It  is  but  a  mode,  in  either  case,  of  pro- 
ttc  ing  its^limited  sovereignty,  and  discharging  its  office  witii 
integrity  and  decent  dignity. 

The  case  is  widely  different  from  that  presented  in  the 
days  of  Jackson,  when  Congress  was  agitated  by  a  proposal 
to  exclude  printed  articles  against  slavery  from  the  mails. 
Slavery  is  not  sanctioned  by  the  law  of  Nature,  nor  by  the 
common  law,  and  can  only  obtain  by  local  and  wrongful 
legislation.  Being  contrary  to  natural  right,  and  offensive 
to  the  ju^t  sentiments  of  the  civilized  world,  it  was  univer- 
sally lawful,  and  even  commendable,  to  write  and  speak 
against  it. 

The  exception  in  a  few  Southern  states,  created  by  urjast 
legislation,  could  not  render  a  dissertation  against  slavery, 
■written  and  printed  in  a  free  country,  unlawful  in  itseir.  If 
the  paper  were  innocent  in  its  inception,  by  the  law  of  the 
place  where  it  had  its  origin,  it  did  not  lose  its  character  by 
being  placed  in  the  mails.  And  so  it  is  evident  that  Congress 


THE    LIBERTY    OF    PRINTING.  13 

could  not  throw  it  out  of  the  mails  without  trespassing  on 
the  right  of  property  and  abusing  its  power.  The  only  act 
of  repression  could  be  done  bj  the  slave  state  after  the  ma'l 
service  was  completed.  The  paper  was  innocent  when  placed 
in  the  mails,  innocent  while  being  transported,  and  when 
dtllvered,  and  could  only  become  offensive  by  force  of  a 
local  law,  opent.ing  on  ;he  person  to  whom  the  printed 
matter  was  addressed,  after  he  had  received  it.  JNo  wonder 
that  learned  jurists  and  wi?e  senators  refrained  from  laying 
hands  on  such  printed  matter,  and  thrusting  it  out  of  the 
maih,  a'?  mentioned  in  the  very  able  and  ingenious  argument 
of  Mr.  Wakeman,  delivered  at  the  late  "  Indignation  Meet- 
ing "  in  Boston. 

But  the  printed  matter  which  I  would  exclude  from  the 
mail:*  is  unlawful  in  the  place  of  its  oriein,  unlawful  during 
its  transit,  and  unlawful  at  the  place  of  its  destination.  Its 
preparation  is  a  crime,  its  author  a  criminal,  its  p^>^8e>ieif'n 
and  circulation  a  crime,  in  most,  if  not  all,  civilzed  coun- 
tries, and  wherever  the  common  law  prevails,  or  Its  spirit 
has  been  embodied  in  a  statute;  and  if  the  carrier  or  distrib- 
utor be  a  private  person,  he  would  be  particps  cruninis  in 
judgment  of  law.  And  now  shall  we  place  the  Federal 
Government  in  the  same  category? 

This  government  assumes  the  burden  of  the  mail?;  it  may 
say  when  and  where  it  will  carry  ihcm,  what  it  will  cnrry, 
and  what  it  will  not;  for  it  seems  too  clear  for  debate  llMt  a 
power  to  choose  implies  also  a  power  to  reject.  Aod  if 
there  be  a  power  to  reject  any  printed  matter — as  I  contend 
there  is,  if  it  be  obscene  and  unlawful — an  incidental  power 
exists  to  make  that  rejection  effectual.  This  is  usuhUv  done 
by  the  infliction  of  pains  and  penalties;  and  in  the  infl  ciion 
of  these  the  government  proceeds,  not  as  against  moral 
offenses,  but  offenses  against  the  proper  regulation  o*  the 
mail  service.  I  concede  that  any  step  beyond  this  wool  \  be 
pure  usurpation  and  tyranny  on  the  part  of  the  Federal  Gov- 
ernment, 

It  is  a  business,  this  carrying  of  the  mails,  within  the 
competency  of  private  persons.  Let  us  imagine  our  UdcI'^ 
bim  carjying  the  mail-bag  on  his  own  broad  shoulilers,  h«v 
lug  told  everybody  what  he  would  carry  and  what  ho  would 
not,  and  a  person  skould  come  and  insist  upon  cramming 
his  maU*bag  with  bad  matter  which  the  old  geatleman  had 


14  THE    LIBERTY    OF    PRINTING. 

sworn  he  would  not  carry,  I  think  our  uncle  would  make  no 
bones  of  settling  the  matter  off-hand,  pedlbus  et  manibus,  to 
the  utter  discomfiiure  of  the  assailant;  and  he  would  eeive 
him  right.  It  would  be  a  mode,  according  to  the  rhetoric 
of  such  cases,  of  "putting  a  head  oa  him" — an  article  of 
furniture  which  he  would  seem  greatly  to  need. 

It  is  conceded  that  a  single  undivided  sovereignty  like  the 
Government  of  Great  Britain  can  exclude  obscene  literature 
from  the  mails  by  seizing  the  foul  prints,  and  the  infliction 
of  pains  and  penalties.  But  it  is  claimed  that  in  our  distri- 
bution of  powers  between  the  states  and  the  Federal  Gov- 
ernment this  authority  has  not  been  conferred  on  the  laiter. 
Where,  then,  can  it  be  found?  If  reserved  to  the  states,  or 
the  people,  it  is  clearly  not  available;  for  no  state  can  touch 
the  mail  service  without  trenching  on  a  power  it  has  in  gen- 
eral terms  delegated  to  Congress;  and  no  popular  mass  can 
meddle  with  the  mails  without  being  guilty  of  riot.  So  it  is 
left  that,  if  the  Congress  of  the  United  States  has  not  the 
power  to  exclude  obscene  prints  from  the  mails,  this  one  item 
of  sovereignty  is  lost,  and  our  government  has  tied  its  hands, 
so  as  to  be  at  the  mercy  of  those  who  deal  in  obscene  litera- 
ture as  a  profession  and  business.  A  construction  of  the 
Federal  Constitution  which  leads  to  such  a  conclusion  is 
surely  too  narrow  to  be  sound. 

Now  to  my  mind  there  seems  to  be  nothing  in  the  way  of 
protecting  the  mails  from  foul  matter  but  the  fear  of  violat- 
ing the  freedom  of  the  press;  and  as  I  trust  you  are  by  this 
time  satisfied  that  there  ought  to  be  no  obstacle  in  that,  wc 
come  to  the  inquiry,  What  is  the  Federal  Government  to  do 
in  reference  to  obscene  prints? 

In  my  judgment.  Congress  should  declare  that  such  prints 
are  not  mailable  matter;  but  in  doing  so  should  employ  the 
word  "obscene"  only,  following  the  language  of  the  pro- 
vision in  the  code  of  Mr,  Livingston  as  to  the  corruption  of 
youth;  being  exceedingly  particular,  so  that  no  religious 
fanatic  or  visionary  moralist  could  find  a  word  or  clause  on 
which  to  base  a  persecution  of  anybody  for  God's  sake! 

A  God  of  ordinary  ability  is  supposed  to  be  capable  of 
taking  excellent  cAe  of  himself,  and  to  scorn  the  assistance 
of  a  creature  but  imperfectly  developed  from  the  ape. 

The  law  should  then  aflQx  such  a  penalty  as  would  be  suffi- 
cient to  deter  people  from  mailing  obscene  publications,  and 


J 


THE   LIBEETY    OF   PBINTING.  15 

no  more;  for  the  object  is  not  to  make  a  moral  code,  nor  a 
penU  ct  de,  nor  enforce  a  creed,  nor  build  up  a  catechism, 
Lutsimp.yio  protect  tbe  governmeni  in  the  fit  and  proper 
d.s-h-irge  of  iis  fane  ion  as  mail  carrier. 

A  fiue  of  a  moderate  sum  for  the  first  offense  would  be 
suflicient,  say  not  exceeding  fifty  or  a  hundred  dollars;  and 
for  the  second  offense,  imprisonment  not  exceeding  six 
months.  In  all  cases  where  punishment  and  penalties  are 
infl  cted,  the  legislature  should  be  careful  to  observe  [the 
supreme  law,  wtiich  ordains  that  excessive  fines  shall  not  be 
impoi^ed,  nor  ciuel  and  unusual  punishments  ioflicted. 

If  the  GoverQuieot  should  find  it  necessary  to  go  further, 
and  to  seize  the  foul  matter  mailed  (a  delicate  procedure, 
and  one  which  nothing  but  necessity  can  warrant),  it  would 
encounter  a  provision  in  the  Constitution  securing  the  peo- 
ple pg^inst  unreasonable  searches  and  seizures,  and  forbid- 
ding warrants  for  that  purpose  except  upon  probable  cause, 
and  i?upported  by  oath.  The  pecple  are  not  secure  from  all 
searches,  but  only  from  unreasonable  ones,  Without  proba- 
ble cause  and  legal  warrant. 

So  us=ed  are  the  people  to  this,  that  the  first  thing  a  plain 
man  thinks  of  when  he  loses  anything  mysteriously  is  a 
se«rch  warrant.  It  is  the  one  idea  with  him,  as  was  an 
"  aiibi"  in  every  case  at  law  with  Tony,  the  venerable  parent 
of  Sam  Weller. 

It  maybe  a  very  difl5cult  process,  but  it  can  hardly  be 
deemed  *' unreasonable,"  to  search  for  and  to  seize  prints 
whose  aim  is  to  corrupt,  youth,  whose  existence  is  a  crime, 
and  which  are  forced  into  the  mails  against  the  express  in- 
junction of  the  law.  I  will  leave  this  to  the  mothers  of  the 
laud:  they  hav  a  right  to  be  heard  on  this  subject,  and  to 
bav  their  feelings  respected  by  the  laws.  Let  their  quick 
sense  of  fitness,  their  apt  and  delicate  judgment,  make  the 
decision,  and  woe  to  that  man  and  that  nation  that  ventures 
to  disregird  i  I 

But  if  the  Government  shall  b3  compelled  by  the  persist- 
en(  e  of  wrung  doers  to  seiza  th'3  foul  prints,  how  shall  this 
be  done?  Tne  only  course  which  occurs  to  my  mind,  from 
what  leflcjctioa  I  hav  been  able  to  bestow  on  the  subject, 
would  be  to  commit  the  search  to  the  several  deputy  post* 
masters,  who  should  apply  to  a  United  States  commissioner 
or  judge  for  a  warrant,  and  under  that  to  seize  the  suspected 


Id  THE    LIEEKTY    OF   PEINTINa. 

prints,  and  carry  them  before  the  officer  issuing  the  warrant, 
■who  should  determine  on  readins;  or  inspection  whether  ob- 
fc  ne,  ani  Icndicg  lo  corrupt  ihe  morals  ot  3'outh,  nr  not. 
It  he  h'  li  them  ob-cene,  the  owaer  sho  Id  h^v  notice  acd  a 
light  of  appeal  t )  the  (Jiicu  i  Court,  and  thence  to  the  Su- 
preme Cjurt  of  the  Uai  cd  ttates:;  for  uo  man  should  be 
thus  deprived  of  his  property,  and  stigmu^z-d  as  a  public 
offender,  without  the  lu'l  benttiv  of  a  judicial  irial. 

It  is  better  that  obscene  literature  thouU  prevail  for  a 
season  than  that  any  man,  however  humble,  however  de- 
praved, shouli  hd  deprived  of  his  leg  J  rights  without  due 
process  aLd  the  enlightened  j'ldgment  of  the  law. 

Citthren  of  the  National  Liberal  League,  you  are  organ- 
ized to  pel  form  a  necessary  and  a  noble  work — no  less  than 
that  of  per  feeling  our  systtm  of  free  government,  bounded 
by  a  wise  and  viituous  generation,  and  intended  to  cilect  a 
perfect  separation  of  the  Caurch  from  the  S:ate.  The  task 
which  you  hav  assumed  to  execute  is  herculean,  taxing  your 
streog.h  and  resources  to  the  utmost.  You  hav  to  make 
war  on  the  myths,  traditions,  and  prejudices  of  long  ages. 
You  hav  a  thoroughly  organized  majority,  misled  by  their 
spiritual  guides,  to  contend  against — a  m^j  )rity  which, 
though  differing  in  many  things,  and  forever  disputing 
among  themselves,  nevertheless  is  alwaj'S  ready  to  unite 
again?t  you,  as  a  common  enemy;  and  you  see  Catnolic  and 
ProtJStant  hugging  each  other  in  sweet  embrt«ce,  as  of  late 
in  New  ila.vtn,  while  maintaining  the  Bible,  prayer,  and 
psalmody  in  the  common  schools.  If  fell  the  discordant  re- 
ligious sects  could  unite,  they  would  paralyze  your  efforts, 
lender  the  idea  of  a  purely  secular  government  infamous, 
and  make  rel  glon  the  parent  and  master  of  the  state.  The 
pi  in  of  our  forefathers  would  be  stamped  out,  and  time 
might  restore  tbat  grand  Christian  invention,  the  lnqui?i- 
tiui-. 

Be  sure,  then,  that  you  do  nothing  to  unite  and  cons  >li- 
date  forces  so  dacgerous  to  a  free  state.  As  yet  you  a-e  not 
lurioui  ded  by  such  intelligence  as  will  forgive  your  slight- 
en  mii>tcke  in  rcascnirg,  or  error  in  morals.  A  bclitver  can 
do  with  impunity  what  will  excite  the  utmoi^t  horror  if  done 
by  a  skeptic.  As  such  of  you  as  have  no  Redeemer  may 
not  commit  fraud  nor  forgery,  nor  rob  a  bank,  nor  poison, 
nor  commit  adultery  with  impunity,  so  you  cannot  commit 


THE    LIBERTY    OP    PRI!JTI>r<*.  17 

a  mistake,  even  in  respect  of  the  liberty  of  unlicensed  print- 
ing, without  casing  d  )wn  en  your  lieada  and  on  your  cau-e 
Ibe  loudest  denur  ci  itioas  of  the  ''unco  guid."  **  A!i  I  h-  !" 
would  Sfiy  those  w^io  pardon  the  olf  jQ8e3  of  the  godly,  "  it 
is  just  as  we  expected.  These  Inlidels  oppose  cur  holy 
religion  from  no  other  mo'ive  than  lo  gel  lid  of  the  moral 
^e^traiuts  which  it  imposes  ;  for  you  see  that  wh«-re  two  or 
threa  of  them  are  gathered  together,  they  incontinently  be- 
tnUe  themseivea  to  leading  and  circulaiinir  lUe  'Fniiis  of 
Philosophy  '  and  '  Cup-d*8  Yokes.'"  And  all  the  congreg.i- 
tioa  would  lilt  up  their  pious  voices,  and  (xclaim  in  'he 
language  of  the  immortal  Widow  Bedott,  "  O  E  der  S:iilfl:s, 
how  true  thit  is  !  " 

I  entreat  you,  therefore,  to  be  wise  ;  and  being  in  fact  the 
true  friends  of  moraUty  av.d  enlightened  freedom,  that  you 
take  no  such  position  on  the  subject  of  the  freedom  of  the 
press  as  will  enable  even  a  Jesuit  to  argue  that  you  are  Ahe 
friends  of  Tcentiousness. 

Above  all  thin^p,  reverence  the  family  as  founded  in 
Kature,  and  tolerate  nothinc  which  can  corrupt  the  morals 
of  youth.  All  power,  even  the  moit  salutary,  is  capible  of 
being  abused  ;  but  an  argument  based  on  its  abuses  cannot 
overthrow  the  power  itself,  if  otherwise,  no  government 
could  stand.  Let  imperfect  liws  hd  amended  ;  let  unjust 
onfs  be  abolished  ;  h-t  abuses  in  administratioa  becorr.ced; 
and  when  government  appoints  tocfliceone  who,  l.ke  SUan, 
becomes 

"  The  tempter  ere  the  accuser  of  mankind." 
a  spy  whose  moral  qualities  fall  below  the  requirements  of 
even   that  mean  t  ffice,  let  Jiim,  but  not  the  government,  be 
abolished. 

Judge  Hurlbut  then  read  the  following  draft  of  a  United  J 
Slates  fctatuie  on  this  subj-ct : 

A    LAW    TO   PREVENT    THE   FORWAKDTNG   AND   DTSTFIBUTION 
OP  OBSCENE    LITERATUKE  BY  THE  MAILS. 

Sect.  I.     He  it  enacted,  dc. 

That  there  shall  not  be  forwarded  by  the  mails, 
nor  distributed  by  any  dc-pu'y  post-master,  any 
obscene  print,  picture,  drawing,  or  printed  com- 
position, manifestly  designed,  or  mainly  tending, 
to  corrupt  the  morals  of  youth. 


i^l8  THE    LIBERTY    OF   PRINTING. 

Sect.  II.  If  any  person  fhall  deliver  at  any  post-cfflce, 
•with  intent  to  bav  forwarded,  or  distributed,  any- 
obscene  print,  picture,  drawing,  or  printed  com- 
position, mentioned  in  the  pieceding  section,  he 
shall  be  fiued  for  the  first  offense,  not  fxcteding 
dollars,  and  for  the  second  or  any  subse- 
quent cflense  shall  be  imprisoned  not  exceeding 

'• months. 

Prov  dedf  Jiowe'ver,  that  no  printed  book,  argu- 
ment, esiay,  treatise,  or  disquisition,  put  forth  in 
sincerity  and  good  faith,  and  in  which  no  obscene 
•words,  phrases,  or  pictures  shall  be  employed, 
although  its  doctrines  or  sentiments,  if  carried  in- 
to practice,  would  have  a  bad  influence  on  society 
or  government,  shall  be  deemed  obscene  •within 
the  meaning  of  this  law. 


REPLY   BY   THE   EDITOR   OF   THE 
TRUTH  SEEKER. 

"We  are  sure  our  readers  will  be  glad  that  •we  bav  repro- 
duced from  The  Index  {he  Uon.  E.  P.  Hurlbut's  able  address 
upon  this  subject,  given  on  the  second  and  third  pages  of 
this  issue.  As  an  argument  in  favor  of  freedom  of  speech 
and  freedom  of  the  press  it  is  sound  and  is  on  the  side  of 
American  liberty.  But  inasmuch  as  it  is  regarded  as  the 
ablest  argument  that  has  been  produced  in  favor  of  retain- 
ing the  Comstock  postal  laws  upon  the  statute  books,  and  as 
— aside  from  the  slanderous  charges  and  reiterations  that 
those  in  favor  of  the  repeal  of  those  laws  are  vile  abettors  of 
immorality  and  indecency — it  is  about  the  only  argument 
that  has  been  advanced  by  the  *'  high  moral "  party,  it  is  to  be 
regretted  that  it  is  not  clear  on  the  point  as  to  where  the 
United  States  obtains  the  anthority  to  take  cognizance  of 
the  morality  and  rpinions  of  the  citizens  of  the  various 
states.  Here  is  where  the  Judge's  paper  fails  to  impart  the 
information  which  thousands  are  so  anxious  to  obtain,  and 
very  many  will  be  sorry  that  he  passed  over  this  vital  point 
60  easily.  And  from  this  very  fact  we  perceive  the  weak- 
ness of  the  position  that  such  marplots  as  Anthony  Com- 
stcck  hav  any  rights  under  the  General  Government  to  im- 
pose upon  the  freedom  of  speech,  the  freedom  of  the  press, 


J 


REPLY.  19 

and  the  freedom  of  the  mails.  All  who  are  desirous  to 
learn  how  the  United  States  Government  obtains  the  right  to 
inquire  into  the  opinions  and  moral  sentiments  of  the  peo- 
ple of  this  couctry,  and  to  employ  its  courts  to  convict  and 
punish  them  therefor,  will  be  disappointed  in  Judge  Huil- 
but's  addiess. 

So  far  as  he  quotes  ihat  eminent  jurist,  Edward  Living- 
ston, in  Iramicg  the  ciiminal  code  of  Loui&iaca,  it  is  all 
right.  Ever}'  Liberal  in  the  country  will  admit  that  Llvirg- 
Bton  was  correct  in  his  definition  of  obscenity,  and  that  the 
penalties  under  the  state  law  which  he  named  were  just  and 
reasonable.  It  is  under  state  laws  that  obscenity  is  a  crime 
and  should  be  punished.  But  the  judge  quotes  nothing  from 
Livingston  or  any  oiher  jurist  in  favor  of  the  General  Gov- 
ernment's taking  cognizance  of  obscenity  or  punishing  it. 
Here  is  just  the  point  of  difference  between  the  "  high  moral  " 
party  and  those  they  characterize  as  low,  vile,  and  indecent — 
the  one  holding  that  the  General  GovernmcLt  has  the  right 
to  inquire  who  is  obscene,  and  to  punish  tbem  with  severity, 
while  the  other  insists  that  the  General  Goverment  has  noth- 
ing to  do  with  it,  but  that  it  belongs  exclusively  to  the  states 
as  Livingston  proposed.  As  this  is  the  groued  upon  which 
the  Liberals  of  the  country  are  divided,  and  as  it  was  upon 
this  point  that  the  National  Liberal  League  disagiecd,  we 
can  but  be  sorry  that  the  Judge  had  so  litile  to  say  about  it. 
He  did  not  quote  any  jurist  or  any  authority  whatever  m 
favor  of  the  General  Government's  taking  the  obscenity 
business  from  the  hands  of  the  states,  ^v  here  it  justly  be- 
longs. The  Judge  hits  the  matter  squarely  on  the  head 
when  he  says :  '*  The  states  and  not  the  Federal  Government 
hav  the  power  to  punish  abuses."  This  is  emphatically 
the  doctrine  of  the  hated  Repealers,  and  if  the  holding  of  it 
makes  them  amenable  to  the  charge  of  immorality,  vileness, 
and  indecency  it  ought  to  apply  to  the  Judge  as  well.  If  it 
is  indecent  for  them  to  deny  the  powers  of  the  Federal  Gov- 
ernment in  cases  of  freedom  and  censoifchip,  the  Judge  is 
also  indecent. 

The  Judge  certainly  does  not  make  a  strong  argument 
when  he  undertakes  to  show  that  the  Federal  Government 

;  possesses   the  power  of  inquisitorial  jurisdiction   over  the 
moral  quality  of  the  mails.    He  very  correctly  states  that 

ijthe  power  conferred  upon  Congress  by  the  Constitution  to 


20  REPLY. 

est^iMisli  postcfilces  and  post-read-",  confers  rho  the  implied 
pooifr  tojunihli  robbery  and  other  rflcnses  against  tbo  mails 
w  h'f  h  liin'/cr  ani  obstruct  the  poiti;!  servi(  e,  which  p^vver  is 
strictly  ]f;r  posial  furpofe?.  lie  distinctly  srys  of  the  Gen- 
c  lU  Gt  vernmt'Dt  that  "  wh(  n  i*:  pucisbes  a  robbery,  or  ( ther 
(ff^n  f  figaicst  the  mailp,  it  is  not  for  a  general  correction  of 
the  I  ubl  c  morals,  or  of  enforcirg  any  of  the  T  n  Com- 
n  .-.ncmvLt-,  bnt  to  enable  it  to  succeed  in  safely  delivering 
th-t  moils."  Bat  this  is  i  o  a'^gument  in  favor  of  iiquiiing 
into  the  epiniors  (r  morals  cf  tho:c  who  deposit  metier  in 
the  mails,  and  there  is  no  sort  of  ani.1  >gy  between  the  two 
cases.  The  first  is  to  facilitate  the  transmission  of  the 
mails  by  removing  cbstiuc'ions,  while  the  o'her  throws 
olstmclions  in  iho  wsy  of  fuch  transmission  by  holding  the 
mnil  nLaittr  un?il  it  is  examined  and  then  throwing  it  out  if 
ff  und  to  be  of  an  immoral  characrer,  or  what  a  fallible  or 
bgoted  man  would  consider  immoral.  PanisLing  mail 
rcb^ers  bears  no  similaiity  to  questioning  the  opinions  and 
morals  ( f  these  using  tht  mai's  How  the  mail  robber*  giv 
the  Government  the  power  to  be  a  moral  itquisitor  we  fail 
to  I  ee. 

The  Judge  seems  to  favor  a  somewhat  moderate  methcd 
of  procedure,  wlien  he  says:  "  The  law  should  ^flBx  such  a 
penalty  as  wclI  1  be  SLfficient  to  deter  people  from  mailing 
obfcece  pull  cation^',  and  no  more;  for  the  ol  j  ct  is  not  to 
m^ke  a  mcnl  cede,  nor  a  penal  code,  nor  enlorce  a  creed, 
nor  build  up  a  catechism,  but  simply  to  protect  the  Gov- 
ernment in  the  fit  and  proper  discharge  of  its  function  as 
mail  carrier."  Bat  why  the  Government,  in  order  to  pro- 
tect itself  in  the  capacity  of  mail  carrier,  should  find  it 
necessary  to  ex-imine  into  the  moral  character  of  the  mail 
matter  intrusted  to  it  is  not  made  clear. 

But  further  on,  the  Judge  makes  the  proposition  for  a  sys- 
tem of  censcrship  and  espionage  which  to  us  seems  the 
most  monstrous  and  most  destructive  of  the  freedom  of  the 
press  and  of  personal  r'ghts  cf  anything  that  h^s  been  yet 
proposed.  lie  says:  "The  only  course  which  occurs 
to  my  mind,  from  what  reflection  1  hav  been  able  to 
bestow  on  the  s=ul  j^ct,  would  be  to  commil  the  search  to  the 
eevtral  deputy  postmasters,  who  shall  apply  to  a  United 
States  Commissioner  or  Judge  for  a  warrant,  and  under  that 
to  seize  the  suspected  prints  and  carry  them  before  the  offl- 


] 


REPLY.  21 

cer  issuiDg  the  warrant,  who  should  determine  on  reading 
or  infpeclion  wliether  obscpne  a-'d  tendicg  to  corrupt  the 
morals  of  youth  or  not  "  !N  .»w  is  that  a  pr«clicab!e  process 
Jor  a  Judge  to  propoee  ?  11  w  are  the  po-traa'^Jeri  to  sajcll 
out  •  b  c<  DC  mn)l  mj.t  er  except  they  open  it  and  cximine  it, 
and,  P^ul  Piy  lik*^,  look  over  wbat  the  people  i-tnd  out,  ?  Ic 
could  only  be  Oone  by  cstablishiDg  a  fy>tem  of  espioniige 
the  most  repugnant  ever  known  in  the  world  1  Atid  then 
whon  the  deputies  or  clerks  think  theyhw  found  some- 
thing that  is  not  quite  conect  or  that  m'ght  tend  to  corrupt 
the  mortilj  of  youih,  they  must  go  to  a  commissioner  or 
jji^ge  for  a  warrant,  when  the  f«)ispected  matter  must  be 
taken  before  taid  conmissioner  or  judge,  who  must  read  it 
over  acd  src  whether  it  leally  is  improper  to  be  sent  for- 
ward, or  wleiher  it  must  be  detainfd  and  Ihe  mailer  pun- 
ished by  a  suit  in  the  courts  of  the  United  Slates,  and  this 
Judge  llurlbu:.  calls  facilitating  the  mail  service,  and  advo- 
c.tes  it  upon  (be  giounds  that  mail  robbers  are  punishtd  ! 
This)  is  reprej-eultd  as  a  powerful  and  uuansweiab  e  ar<ju- 
ment  in  favor  of  the  Comstock  postal  Uws,  to  oppose  which 
i  voo  be  dcDounced  by  the  immaculate  "reformers,"  as  vile 
and  obscene. 

If  the  post  <  ffice  in  th-s  city  be  taken  as  one  Piost  reces- 
eary  to  be  insptctcd  and  sciuliLized  for  indecent  matier, 
where  at  least  a  hundred  tons  of  mail  mater  leave  d>ii  y,  a 
full  reuinuent  ol"  deputies  or  inquisitors  would  be  rtqtiired 
to  ferret  out  the  ima>oral  matter  that  might  be  mailed ;  and 
if  5-uch  quar-tities  are  constanily  being  seoJ.  to  f  chooU  a',  d 
fcenninaries  as  Comsiock  and  Abbot  assure  us  are  beio;;  sent, 
it  would  require  a  great  number  of  commissioners  or  j  idges 
to  issue  wai rants  and  bring  to  justice  the  vde  (fftnders.  It 
wonl'i  make  such  an  inquisition  of  the  general  po&t-cfQce 
and  United  .S  ates  courts  a3  would  put  Dominic  an<l  Tor- 
qu<.'mad4to  shsme.  Ii  cannot  be  believed  that  the  Ameri- 
can people  are  yet  ready  for  a  censorship  of  this  kind, 
and  it  can  hardly  be  believed  that  the  intelligent  Libetal«s  of 
the  country  are  prepired  to  accept  a  sys'em  of  espionage  of 
that  soit,  or  that  it  is  netd  ul  to  uphold  such  a  rule  in 
Older  not  to  he  denominated  F.eelovers,  defenders  cf  ob- 
scenity, etc.  Far  sooner  would  we  indorse  what  the  Judge 
utters  when  he  says:  "It  is  better  that  obscene  literature 
should  prevail  for  a  season  than  that  any  man,  however 


22  REPLY. 

humble,  however  depraved,  should  be  deprived  of  his  legal 
right",  without  due  process  and  the  enlightened  judgment 
of  the  law."  That  sounds  far  better  than  proposing  the 
odious  system  of  inquisition  we  hav  briefly  considered. 

He  states  a  potent  truth  when  he  says  :  '*  A  believer -can 
do  with  impunity  what  will  excite  the  utmost  horror  if  done 
by  a  skep'ic.  As  such  of  you  as  hav  no  Redeemer  may 
not  commit  fraud  or  forgery,  nor  rob  a  bank,  nor  poi- 
son, nor  commit  adultery  with  impunity,  so  you  cannot 
commit  a  mistake,  even  in  respect  of  unlicensed  printing, 
without  calling  down  on  your  heads  and  on  your  cause  the 
loudest  denunciations  of  the  'uncoguid.'"  This  is  partic- 
ularly true,  but  it  seems  a  very  indifferent  argument  to  con- 
vince Liberals  why  they  should  advocate  throwing  away 
the  guarantees  of  the  Constitution,  which  is  the  only  pro- 
tection we  hav  for  the  liberties  of  the  people,  and  advocat- 
ing a  censorship  and  an  inimical  tribunal  which  will  judge 
skeptics  and  Freethinkers  far  more  severely  than  believers 
and  favored  ones  and  pronounce  them  guilty  of  sending 
obscene  matter  when  in  others  it  would  not  be  noticed.  If 
that  is  a  good  reason  why  unbelievers  should  shout  them- 
selves hoarse  in  favor  of  Comstockism  we  fail  to  see  it. 

Hither  than  to  advocate  this  tyrannous  and  unfriendly 
rule,  we  insist  it  would  be  far  better  to  punish  obscenity  by 
such  state  laws  as  Edward  Livingston  devised  for  Louisiana 
and  fcimilar  to  those  which  every  state  has  in  its  criminal 
code.  The  state  laws  are  amply  sufficient  for  almost  all  cases 
of  obscenity,  aip*-4t  is  certainly  better  to  Jiv  them  a  fair 
trial  before  making  a  detective  spy  system  of  the  post-office 
department.  The  aphorism  which  the  Judge  quotes  from 
Blackstone  is  worthy  of  repetition.  "The  liberty  of  the 
press  is  indeed  essential  to  the  nature  of  a  free  state.  .  .  . 
Every  freeman  has  an  undoubted  right  to  lay  what  senti- 
ment he  pleases  before  the  public  ;  to  forbid  this  is  to  de- 
stroy tbe  freedom  of  the  press."  In  the  same  connection 
we  will  also  quote  a  worthy  sentiment  from  Chas.  A.  Dana: 
"  Liberty  cannot  be  overthrown  in  this  countiy  by  direct 
attacks.  The  only  dunger  is  that  it  may  be  insidiously  un- 
dermined. "  It  is  in  yielding  assent  to  the  plausible  doctrines 
advanced  by  Judge  Hurlbut,  and  more  urgently  demanded 
by  Anthony  Comstock  and  Francis  E.  Abbot,  that  Liberty's 
greatest  danger  lies. 


MB.  WAKEMAN's  reply  TO  JUDGE  HURLBUT.       23 


THE   CAMPAIGN   AGAIKST    IJWCOXSTITU- 

TIO\AI.    PO§TAL,  LAIVS  A^O  ESPIOIV- 

AGE  OVER  THE  IHIAILIB). 


a  reply  to  some  parts  of  the  address  of  hon. 
e.  p.  hurlbut  of  albany  (formerly  justice  of 
the  supreme  court  of  the  state  of  new 
York)  on  "the  liberty  of  printing,"  deliv- 
ered BY  HIM  BEFORE  THE  SECOND  ANNUAL  CON- 
GRESS OF  THE  NATIONAL  LIBERAL  LEAGUE,  HELD 
AT   SYRACUSE,  OCT.  26TH    AND    27tH,  1878. 

To  the  Editor  of  tJie  Index :  "Wit  and  age  com- 
bined are  so  pleasant  tfiat  it  is  an  unpleasant  duty  to 
question  their  gifts.  In  this  view  I  have  some  sym- 
pathy with  the  minority  whose  ^^ Jillibustering  "  pre- 
vented me  from  replying  to  Judge  Hurlbut's  address 
on  the  day  it  was  delivered.  Since  then  a  similar 
feeling  of  reluctance  to  appear  publicly  in  opposi- 
tion to  our  venerable  friend,  added  to  my  repug- 
gance  to  the  whole  subject,  has  even  given  a  hue 
of  pleasure  to  the  engagements  that  have  kept  my 
pen  from  paper.  Indeed,  if  you  had  not  put  out 
that  address  in  pamphlet  form  as  ^^ proving  unan- 
swerably the  constitutional  right  of  Congress  to  pro- 
hibit the  circulation  of  obscene  literature  through 
the  mails  " — a  claim  the  Judge  never  made  for  it — I 
should  have  left  it  to  the  second  thought  of  the  read- 
ers to  furnish  the  answers  that  seemed  to  the  major- 
ity of  those  who  heard  it  itjady  enough,  for  its  effect 
<7a8  to  largely  increase  the  vote  of  that  majority. 


*?4  MR. 

But  fortunately  the  dissent  of  those  who  favored 
the  repeal  of  espionage  was  largely  balanced  by 
their  delight  at  the  first  half  of  the  address,  which 
was  really  in  favor  of  ^^  liberty  of  printing^''  and 
which  seemed  to  them  a  substantial  answer  to  the 
latter  half  of  the  address  against  it.  In  clear,  sen- 
tentious utterances  the  Judge  echoed  the  feelings  of 
all  Liberals,  and  I  hope  all  Americans,  as  to  the  price- 
less value  of  the  liberty  of  printing,  includii  g,  of 
course,  the  circulation  of  printed  matter.  To  that 
he  rightly  attributes  "  the  downfall  of  ignorant 
authority,  the  abolition  of  slavery,  the  general  prog- 
ress of  the  world,"  and  adds  these  memorable  words  : 
*''  Without  the  liberty  of  printing  a  democratic 
republic  cannot  exist ;  a  plea  for  the  former  is  a 
plea  for  its  lifeJ^ 

These  are  our  common  premises.  Do  they  lead 
to  his  conclusion,  or  to  mine  ?  Do  they  lead  to  an 
espio7iage  over  the  mails  or  to  their  inviolability 
under  the  Constitution  ? 

At  the  outset,  let  every  intelligent  reader  be  ad- 
monished that  though  this  may  be  a  question  of 
constitutional  law  to  some  extent,  he  is  not  to  give 
up  his  right  of  private  judgment  and  submit  to  law- 
yers or  courts.  The  Constitution  was  made  for  the 
whole  people  to  understand,  and  they  are  to  deter- 
mine what  it  means.  There  is  always  an  appeal  to 
them  just  as  in  Parliamentary  law  there  is  always  a 
final  appeal  to  the  House.  Intricate  questions  of 
real  estate,  commercial  law,  or  private  rights  are 
generally  left  to  a  Court's  control.  But  questions 
of  public  liberty  and  of  government,  although  al- 
ways in  this  country  questions  of  constitutional 
construction,  are  determined  by  the  people.     They 


TO    JUDGE    HURLBUT.  25 

must,  therefore,  take  care  to  understand  the  funda- 
mental law  of  the  land,  and  never  commit  its  mean- 
ing to  any  learned  profession,  departments,  or 
Courts.  For  the  lawyers,  like  the  Judge  and  myself, 
will  disagree  ;  the  departments,  as  in  the  case  of 
these  postal  laws,  will  seek  to  use  "  ulterior  powers  ;" 
the  Courts,  and  especially  the  Supreme  Court  of  the 
United  States,  will  too  often  be  found  on  the  wrong 
side  of  any  question  of  liberty.  This  was  abund- 
antly shown  by  the  instances  cited  in  my  Faneuil 
Hall  speech.  In  every  case  there  cited  the  people 
reversed  the  courts  by  repealing  the  laws.  By  the 
quiet  and  efficient  use  of  vote,  voice,  and  influence 
the  people  cnn  jq  that  way  always  protect  themselves 
and  preserve  thei/  liberty  and  the  Constitution. 
The  position  now  is  very  similar  to  what  it  was 
when  the  Dred  Scolt  decision  nationalizing  slavery 
was  rendered.  It  did  not  take  liberty-loving  citi- 
zens then  very  long  to  discover  their  true  path  out 
of  the  mazy  tangles  of  law  arguments.  They  knew 
by  instinct  that  the  Federal  Government  was  never 
intended  or  formed  to  protect  slavery,  and  as  soon 
as  their  attention  can  now  be  clearly  called  to  it, 
they  will  know  that  it  was  not  intended  nor  formed 
to  be  an  Inquisition  over  the  mails,  the  press,  and 
the  people,  by  its  post-office. 

Another  matter  preliminary  and  necessary,  is  that 
the  reader  should  become  familiar  with  the  great 
and  e')nstilutional  distinction  between  the  powers 
and  functions  of  the  state  governments  and  the 
Federal  or  National  Government,  especially  in  regard 
to  criminal  jurisdiction.  To  this  end,  I  will  suppose 
the  reader  to  have  read  my  Faneuil  Hall  speech  and 
Answer  to  Index  criticisms  on  the  same.    As  the 


26  ME.    WAKEMAN^S   REPLY 

address  of  Judge  Hurlbut  was  to  some  extent  in- 
tended as  an  answer  to  those  publications,  a  knowl- 
edge of  them  is  certainly  necessary  to  the  under- 
standing of  this  discussion. 

We  come  now  to  the  main  question,  and  in  the 
end  we  think  it  will  be  found  to  amount  to  this  : 

Shall  the  United  States  or  General  Government 
acquire  a  oiew  and  unlimited  criminal  jurisdiction 
over  the  lives,  liberty,  and  property  of  the  people 
by  means  of  a  discriminatien  in  regard  to  the  mean- 
ing and  sentiments  of  postal  matter,  not  required 
for  postal  purposes,  and  enforce  it  by  an  espionage 
and  penalties  not  required  for  postal  protection  ? 

The  Judge  may  not  intend  this,  but  it  will  be  found 
that  the  construction  he  contends  for  implies  it,  and 
makes  it  the  real  question. 

We  say  this  is  a  new  claim.  For  one  hundred 
years  the  simple  grant  of  postal  powers  in  the  Con- 
stitution, to  wit,  "To  establish  post-offices  and 
post-roads,"  was  held  in  law  and  practice  to  mean 
that  the  United  States,  through  their  Congress,  had 
power  to  run  and  regulate  "  the  entire  postal  system 
of  the  country  "  for  postal  purposes  /  but  not  for 
moral,  religious,  political,  or  any  ulterior  purposes. 

We  say  also,  that  this  is  a  claim  for  unlimited 
power.  There  is  no  limit  to  the  use  of  the  prec- 
edent it  establishes.  These  postal  laws  began  in 
3  872  by  excluding  all  lottery  matter  from  the  mails, 
then  in  1873  matter  that  might  be  deemed  o5sce7/-e, 
immoral,  etc.,  was  excluded,  and  this  kind  of  legis- 
lation has  been  extended  in  1876,  as  will  appear  from 
all  the  laws  on  the  subject  hereto  annexed.  This 
legislation  is  intended  for  no  postal  purposes,  but  aa 
expressly  stated  by  the  Supreme  Court  in  the  Jacl 


TO    JUDGE    HURLBUT.  27 

son  case,  to  suppress  "  matter  deemed  injurious  to 
public  morals,"  and  "  institutions  which  are  supposed 
to  have  a  demoralizing  influence  upon  the  people." 
If  such  "  matter  "  and  "  institutions"  can  be  consti- 
tutionally discriminated  against  in  the  mails,  so  can 
any  other  matter  or  institutions  which  the  whim  of  a 
Congressional  majority  may  wish  to  destroy.  Similar 
laws  will,  when  the  necessity  is  deemed  sufliciently 
pressing,  certainly  be  enacted  against  blasphemous, 
irreligious,  revolutionary,  socialistic,  riotous,  incendi- 
ary, or  insurrectionary,  etc.,  etc.,  matter  and  institu- 
tions. If  this  power  is  once  granted,  the  majority 
are  in  duty  bound  "  to  protect  the  people  "  in  every 
way  by  it.  The  post-office  is  a  necessity  of  every 
civilized  person,  and  the  minority  are  at  their  mercy. 
The  Constitution,  as  the  bulwark  of  the  liberties  of 
the  states  and  the  people,  will  be  practically  swept 
away. 

To  argue  for  this  new  unlimited  power  before  a 
meeting  of  American  citizens,  and  above  all.  Liber- 
als,  ought  to  have  been  like  arguing  for  the  Dred 
Scott  decision  in  a  Republican  Convention,  and  it 
was  no  wonder  I  had  to  thank  the  Judge  for  increas- 
ing the  majority  for  "  repeal." 

The  Judge  thinks  that  Congress  has  this  power 
under  the  Constitution,  and  that  it  may  be  executed 
with  safety  to  liberty. 

I  think  that  the  Constitution  grants  no  such  power, 
and  that  it  is  a  usurpation  most  dangerous  to  liberty. 
We  must  then,  first  in  order,  look  at  this  question  of 
alleged  constitutional  power,  and  then  consider  its 
dangerous  consequences  to  liberty.  The  Judge  has 
chosen  to  consider  the  consequences  first.  This  is 
often  done  where  the  conclusion  is  felt  rather  to  jus- 


28  MR.  wakeman's  reply 

tify  th^  premises  instead  of  following  from  them, 
and  should  always  lead  us  to  suspect  their  soundness. 
But  many  are  willing  to  help  row  the  boat  if  they 
believe  it  carries  their  treasure.  To  put  the  part  of 
the  address  relating  to  this  supposed  United  States 
power  logically,  we  must  read  its  paragraphs  in  their 
inverted  order,  and  begin  with  his  proofs  of  the  exist- 
ence of  this  power  near  the  middle  of  the  second 
half  of  his  address.  We  will  review  his  reasons  in 
that  inverse  order  and  close  with  his  attempt  to  har- 
monize this  supposed  power  with  liberty  and  the 
freedom  of  the  press. 

I.  The  first  ground  assigned  for  this  power  is  evi- 
dently his  main  reliance,  and  may  be  called  the 
argument  of  lost  sovereignty. 

It  is  well  known  that  this  power  of  espionage  has 
been  used  in  all  despotic  and  monarchical  govern- 
ments, and  even  to  some  extent  in  England,  whence 
our  law  and  government  were  derived.  It  is  conceded 
that  the  government  in  those  countries  does  inspect 
the  mails  and  use  them  as  a  means  for  the  detection  of 
criminals.  This  is  now  done  constantly  in  Russia,  as 
I  have  good  reason  to  know  from  letters  lately  re- 
ceived from  there.  Thus,  throughout  Europe  the 
post-offices  are  regular  traps  to  catch  political  and 
social,  as  well  as .  moral  and  criminal,  offenders. 
Thus  the  real  purpose  of  the  post-office  has  been 
prostituted  for  purposes  of  oppression  and  extortion, 
or  the  banishment  of  every  opponent  of  tyranny  and 
despotism. 

Now,  says  the  Judge,  this  attribute  of  sovereignty, 
having  once  belonged  to  our  people,  as  it  did  to  the 
Englis?!  people  and  their  government,  must  now  be 
lodged  either  in  our  state  or  national  governments     1 


TO    JUDGE    nURLBUT.  29 

for  it  cannot  have  been  lost.  But  the  states  have  it 
not,  for  they  can  do  nothing  inside  the  post-offices; 
therefore  the  General  Government  must  have  it  ! 

The  answers  to  this  are  plain  enough: 

(1.)  It  is  an  amusing  instance  of  what  logicians 
call  the  fallacy  of  "  proving  too  much,"  which  as  we 
shall  find  is  a  constant  attendant  upon  the  Judge 
throughout  his  treatment  of  this  question  of  power. 
If  this  "  item  of  sovereignty  "  has  been  inherited  or 
possessed  by  our  state  or  national  governments,  so 
have  all  the  other  abuses  or  "items  of  sovereignty,'* 
to  which  we  have  referred,  and  the  state  and  na- 
tional governments  are  very  derelict  in  not  exercis- 
ing them  for  "the  good  of  the  people."  Nor  is 
this  "  item "  limited  to  obscenity,  but  it  must  in- 
clude all  other  purposes  for  which  the  English 
Government  has  used  it. 

(2.)  The  next  and  conclusive  answer  is  the  fact 
that  our  people,  out  of  their  unlimited  and  absolute 
sovereignty,  have  chosen  to  establish  a  limited  Fed- 
eral Government,  and  have  also  limited  the  sover- 
eignty of  the  state  governments  by  constitutions, 
and  in  so  doing,  have  determined  not  to  use  thou- 
sands of  "items  of  sovereignty"  that  they  might 
have  used,  and  which  other  "  undivided  sovereign- 
ties "  do  use. 

They  might  have  formed  an  empire  like  Russia, 
or  a  limited  monarchy  like  England,  and  in  such 
cases  would  have  exercised  all  of  the  "items  of 
sovereignty  "  suitable  to  those  Governments.  But 
in  forming  a  Federal  Government  "  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity," 
they  laid  aside  many  "  items  of  sovereignty"  exercised 
by  other  peoples  and  governments,  but  deemed  by 


30  MR.    WAKEMAN's    EEPLY 

them  "  dangerous  to  public  and  private  liberty  and 
utterly  inconsistent  with  the  genius  of  free  institu- 
tions," as  the  Liberal  League  stated  it  at  Philadel- 
phia in  1876.  The  people  may,  out  of  their  absolute 
sovereignty  amend  or  lay  aside  our  present  Consti- 
tution and  return  to  the  forms  and  "  items  of  sover- 
eignty," called  a  despotism,  but  until  they  do  this 
such  possible  items  of  sovereignty  not  granted  by 
the  Constitution  to  the  General  Government  remain 
in  the  states  and  people,  not  lost  at  all,  but  in  disuse 
until  they  choose  to  change  our  present  constitutions, 
national  and  state. 

(3.)  That  this  inspection  and  espionage  of  postal 
matter  was  one  of  those  "  items  of  sovereignty  "  our 
republican  fathers  were  expressly  anxious  to  get 
rid  of,  is  clear  enough  from  contemporaneous  his- 
tory ;  from  their  declaration  that  the  postal  power 
was  to  be  "  harmless  in  every  j^oint  of  vieicf^  and, 
also,  from  the  express  and  limited  grant  "to  establish 
post-offices  and  post-roads,"  icith  no  general  power 
over  them  othervnse^  much  less,  power  to  use  them 
for  governmental  or  any  ulterior  powers.  A  little 
attention,  to  this  latter  point  may  be  needed.  The 
grant  of  postal  power  is  for  ia  postal  purpose  as 
plai%  as  words  can  make  it.  The  words  do  not 
intrust  the  general  power  to  Congress  to  make  gen- 
eral laws  on  the  subject,  as  Parliament  might  do, 
or  as  Congress  might  do  in  regard  to  foreign  com- 
merce, coinage,  weights  and  measures,  patents,  bank- 
ruptcy, copyrights,  piiacies,  or  offenses  against  the 
laws  of  nations.  Over  all  these  subjects  Congress 
has  jurisdiction  by  a  general  grant  of  power,  but  the 
postal  power  is  simply  to " estahlishy''  i.e.,  to  do  a 


TO    JUDGE    HURLBUT.  31 

specific  thing  for  its  own  sake  and   purpose,  and  no 
more  ! 

This  special  limitation  was  necessary  to  rendf 
the  power  "  harmless,'''^  and  free  from  usurped  crim- 
inal jurisdiction  and  espionage.  The  Britis^h  Gov- 
ernment had  intercepted  and  broken  open  letters 
and  papers  for  every  reason  that  seemed  to  them 
good.  The  inviolability  of  the  mails  was  an  instinct 
of  republicanism,  while  espionage  is  the  necessity  of 
all  spiritual  and  political  despotisms.  Our  fathers 
were  expressly  careful  not  to  grant  this  latter  power, 
so  liable  to  abuse,  and  so  completely  at  war  with 
the  sentiments  of  the  American  people.  They  de- 
termined to  bury  this  "  item  "  with  its  brother  items 
of  tyranny,  beyond  the  power  of  resurrection,  and  so 
they  gave  a  special  power  that  had  been  used  under 
the  confederacy  (without  thought  of  espionage) 
and  merely  added  "  and  post-roads  "  to  the  former 
power  of  the  confederacy  "  to  establish  post- 
offices."  The  post-office  vas  thereby  for  the  first 
time  emancipated,  and,  in  America,  its  contents  were 
no  longer  to  be  under  the  espionage,  interception, 
and  violation,  as  if  in  a  detective  bureau,  of  the  gov- 
ernment. Our  Fathers,  when  they  snatched  the  scep- 
ter from  tyrants,  took  with  it  that  "  item  of  sover- 
eignty,'' post-office  espionage.  It  is  clear  that  this 
power  was  not  granted  by  the  United  States  Consti- 
tution in  wurds  or  intention,  and  that  to  imply  it 
as  an  "  item  of  sovereignty  "  would  bring  on  us  all  the 
"  items  "  we  had  a  revolution  to  get  rid  of. 

II.  The  next  ground  the  Judge  takes  is  stated  in 
these  words  :  *'  For  it  seems  too  clear  for  debate 
that  a  power  to  choose  implies  also  the  power  to 
reject,"  and  to  enforce  the  rejection  by  penalties. 


82  MR.  wakeman's  reply 

This  is  nothing  more  than  the  old  argument  of  Mr. 
Justice  Field,  and  which  v/as  completely  answered 
in  my  Faneuil  Hall  speech.  Instead  of  being  too 
clear  for  debate,  it  is  so  manifest  a  begging  of  the 
question  that  it  is  ridiculous  to  argue  it  seriously. 
The  power  to  exclude  has  ever  been  for  postal  pur- 
poses, and  this  fact  entirely  negatives  the  notion 
that  exclusion  for  any  other  purpose  is  lawful. 
To  assume  that  there  is  a  general  right  of  exclusion 
because  there  is  a  right  to  do  it  for  postal  purposes 
is  simply  absurd,  and  assumes  what  is  to  be  proved. 

But  the  Judge's  humor  comes  to  the  relief  of  his 
logic.  He  represents  "  Uncle  Samuel "  as  aj^ersonal 
mail-carrier,  who,  "  having  said  what  he  would 
carry  and  w^hat  he  would  not,"  puts  "  a  head  "  on 
any  one  who  puts  stuff  he  think's  "  dirty "  in 
meaning  in  his  mail-bag. 

But  Uncle  Samuel,  by  permanent  and  unchange- 
able contract  to  the  exclusion  of  all  others,  went 
into  the  mail-carrying  business  simply  as  such 
and  for  his  employers  in  common.  He  worked 
a  hundred  years  without  regard  to  the  sentiments 
of  the  inclosed  matter  his  employers  sent.  Now 
certain  fanatics  tell  him  there  may  be  some 
lottery  matter  in  his  bags,  or  papers  "dirty"  in 
meaning.  He  thereupon  begins  to  dictate  to  his 
employers  as  to  what  he  will  take,  and  instead  of 
delivering  his  letters  and  papers  he  sits  down  by  the 
road  and  tries,  in  a  blundering  way,  (for  he  has  more 
good  nature  than  critical  judgment,)  to  rpell  out 
the  lottery  matter  and  dirty  papers  and  destroy 
them,  and  then  to  find  out  and  punish  the  senders  ! 
Unless  his  employers  are  fools  they  will  put  "a 
head "  on   Uncle  Samuel   that   will  enable   him  to 


TO    JUDGE    HURLBUT.  33 

attend  to  his  business  and  fulfil  his  contract  of  mail- 
carrying  better  than  this.  A  private  mail-carrier 
would  soon  find  his  head  broken  after  such  antics.- 

But  the  Judge  concedes  that,  after  all,  Uncle 
Samuel  has  no  right  to  destroy  this  dirty  matter  or 
reject  it  on  moral  grounds.  He  says  that  the  penal- 
ties to  enforce  this  right  of  rejection  can  only  be 
"  not  as  against  moral  offenses,  but  offenses  against 
the  proper  regulations  of  the  mail  service.  I  con- 
cede that  any  step  beyond  this  would  be  pure  usur- 
pation and  tyranny  on  the  part  of  the  Federal  Gov- 
ernment." This  is  an  inevitable,  but  a  fatal,  admis- 
sion. 

It  is  only  as  against  postal  offenses,  after  all,  that 
the  Judge  finds  any  right  to  reject  any  printed 
matter  or  to  impose  penalties  for  sending  it.  He 
is  thus  compelled  to  give  up  the  right  loholly  or  to 
assert  that  moral  purposes  are  postal  purposes. 

HI.  The  Judge  therefore  undertakes  to  show  that 
moral  purposes  are,  or  may,  or  ought  to  be,  in  some 
way  or  to  some  extent,  postal  purposes.  In  other 
words,  that  Uncle  Samuel,  simply  as  mail-carrier, 
and  nothing  more,  has  a  right,  xmder  the  Constitu- 
tion, to  search  for  and  throw  out  of  the  mails,  and 
to  punish  those  who  send,  matter  he  deems  obscene, 
immoral,  or  criminal. 

That  moral  purposes  are  not  postal  purposes  was 
pointed  out  at  length  in  my  Faneuil  Hall  speech  and 
answer  to  Index  criticisms.  It  was  shown  that  all 
attempts  to  exclude  matter  by  inspection  of  its 
meaning,  and  to  punish  crimes  by  espionage  and 
decoy,  could  only  detract  from  the  use,  income,  and 
"  conveniency  "  of  the  postal  service  as  such  ;  and 
that  no  justification  was  possible  for  such  practices 


34  MR.    WAKEMAlf's    REPLY 

unless  the  post-office  could  be  used  for  the  "  ulterior 
purpose  "  of  supervising  the  morals  of  the  people 
and  detecting  criminals,  purposes,  in  the  words  of 
Daniel  Webster,  "  expressly  unconstitutional."  Now 
what  are  these  offenses  ?  and  where  is  the  right  to 
impose  any  penalty  for  them  found  ?  It  is  a  well- 
known  rule  of  law  that  no  penalty  can  be  imposed 
by  implication,  and  that  there  can  be  no  penalty 
created  without  express  authority. 

The  Judge  answers  none  of  these  arguments — as, 
indeed,  who  can  ? — but  he  endeavors  to  push  them 
out  of  sight  by  suggesting  new  aspects,  which  the 
slightest  examination  shows  to  be  illusory  and 
guilty  of  including  and  "  proving  too  much." 

1.  The  first  of  these  suggestions  is,  that  unless 
the  mail-carrier  looks  over  and  throws  out,  and  pun- 
ishes the  sender  of,  bad  and  criminal  postal  matter, 
he  is  particeps  criminis  in  its  consequences. 

The  answer  is  that  the  mail-carrier  does  not  under- 
take to  be  responsible  for  the  character  of  the  mail 
matter,  and  without  assuming  a  responsibility  he  can 
in  no  wise  be  guilty  of  a  wrong.  It  is  only  his  con- 
tract and  duty  to  carry  the  mails,  not  to  supervise 
their  contents.  He  has  no  knowledge  or  intention 
that  makes  him  share  the  criminal  character  or  pur- 
pose of  the  matter  enclosed  any  more  than  the  cap- 
tain of  a  vessel  who  carries  it. 

The  argument  to  the  contrary  proves  too  much. 
If  the  duty  of  supervision  exists,  it  must  be  thor- 
oughly performed,  or  the  moral  responsibility  will 
certainly  attach.  Letters  and  matter  of  all  kinds 
must  be  then  thoroughly  inspected.  It  will  never 
do  to  let  rascals  get  ahead  of  the  Paternal  Govern- 
ment by  a  little  mucilage,  sealing-wax,  or  string. 


TO    JUDGE    HURLBTTT.  35 

Everything  must  come  open,  so  that  the  people  may 
be  as  thoroughly  protected  from  any  "  improper"  and 
impious  influences  as  they  are  in  Russia,  or  the 
government  will  certainly  be  morally  responsible 
and  particeps  criminis. 

2.  The  Judge  next  argues  that  obscene  matter  may 
be  excluded  for  this  reason,  that  "  By  stufting  the 
mails   with   obscene  matter,  the  [postal]  service  is 
made  to  exceed  arid  overdo  its  proper  office ;  to  be 
harmful  and  a  nuisance,  rather  than  a  benefit,  to  the 
public  ;  and  it  seems  hardly  to  be  straining  a  point 
to  hold  that,  by  the  delegation  of  power  to  Con- 
gress to  make  all  laws  necessary  and  proper  to  carry 
into  effect  the  powers  conferred  in  reference  to  the 
mails,  authority  is  derived  to  prevent  as  well  the 
mischiefs  of  carrying   obscene   literature   as   those 
arising  from  mail  robbery,  so  that  the  service  should 
be  protected  as  well  from  the  dangers  of  excessive, 
as  those  of  inadequate  performance,  and  be  not  only 
useful,  but   harmless,    at   least    to   such   extent   as 
not  to  be  accessory  to  crime.     It  is  a  mode,  in  either 
case,  of  protecting  its  limited  sovereignty  and  dis- 
charging    its    office     with     integrity    and    decent 
dignity." 

I  quote  the  Judge's  words  in  full  on  this  point 
because  they  fill  me  with  wonder  and  astonishment, 
as  things  mysterious  are  apt  to  do ;  and  because  the  A 
Judge,  at  Syracuse,  seemed  "to  set  special  store" 
by  this  argument  as  one  that  might  hold;  and  be- 
cause it  seems  to  me  that  the  non-lucidity  of  the 
style  is  a  picture  of  the  same  kind  of  thought.  The 
Judge,  usually  so  admirably  clear  and  concise  in  his 
expression,  would  never  have  left  us  this  sentence 
unless  he  had  been  severely  tangled  up  by  a  notion 


80  ME.    WAKEMAW'S    EEPLT* 

that  would  not  stand  simple  and  clear  expression 
without  vanishing. 

When  analyzed,  this  argument  of  excessive  per- 
formancCy  (1)  begs  the  question,  (2)  confounds  things 
that  have  no  relation  to  each  other,  and  (3)  "  proves 
too  much." 

The  reasoning  is,  that  because  the  postal  service 
has  constitutional  power  to  protect  itself  from  inad- 
equate performance  of  its  office,  caused,  for  instance, 
by  mail-robbery,  therefore  it  must  also  have  power 
to  protect  itself  from  the  excessive  performance  of 
its  service,  which  the  carrying  of  obscene  literature 
would  be.  >^ 

(1.)  But  whether  it  would  be  an  excessive  per- 
formance of  the  postal  service  to  carry  what  may  be 
offered,  not  detrimental  to  itself,  is  a  question  that 
takes  for  granted  the  whole  issue.  We  do  not  see 
how  a  postal  duty  can  be  excessively/  performed  any 
more  than  any  other  duty.  It  cannot  be  excessive 
if  the  matter  is  constitutionally  mailable,  and  that  is 
the  very  question. 

(2.)  But  whether  the  performance  would  be  ex- 
cessive or  not,  can  in  no  wise  be  proved,  because  the 
postal  service  has  the  power  to  punish  mail  robbery, 
which  would  be  destructive  to  it.  That  is  for  a 
plain,  necessary  postal  purpose,  to  wit,  to  prevent 
injury  to  itself.  The  bad  effect  that  certain  mailed 
matter  may  have  upon  the  people  is  certainly  not  a 
similar  postal  injury,  nor  an  injury  to  the  people, 
which  the  post-office  ie  responsible  for,  as  it  would 
be  if.  it  allowed  its  service  to  be  destroyed  by  rob- 
bery ;  for 

(o.)  This  argument,  if  allowed,  like  the  former 
one,  proves  too  much.     If  the  postal  department  is 


TO    JUDGE    HURLBTTT.  37 

to  regard  the  carrying  of  criminal  or  "  improper  " 
matter  as  "an  excessive  perf ormp.nce "  of  its 
duty,  then  it  is  in  duty  bound  to  see  to  it  that  it 
carries  no  improper  matter.  It  must  protect  itself 
from  all  "excessive  performance"  by  making  the 
national  post-office  a  national  sieve  to  cull  out  what 
it  may  deem  to  be  non-injurious  to  the  people  ;  and 
it  must  destroy  the  rest,  with  penalties  to  the  senders. 

The  Judge  can  never  escape  the  fatal  assumption 
that  goes  with  every  attempt  to  sustain  any  United 
States  postal  law  of  this  kind,  that  is,  that  it  must 
be  executed  by  an  espionage  amounting  to  a  censor- 
ship of  all  mailed  matter.  For  the  power  and  right 
claimed  involves  the  moral  duty  of  its  use  to  protect 
the  people  against  everything  that  may  be  criminal, 
immoral,  or  injurious.  The  new  Inquisition  has  its 
moral  responsibility,  which,  if  it  assumes,  it  must 
execute  ;  and  what,  to  use  his  own  words,  may  not  be 
"  accessory  to  crbne^^? 

(4.)  The  Judge  next  tries  to  show  two  further 
grounds  for  supposing  that  there  may  be  an  "  excess- 
ive performance  "  of  postal  service,  which  the  United 
States  should  be  protected  against  by  these  new 
postal  laws.     These'are  : 

(1.)  From  the  nature  of  the  postal  grant  :  Be- 
cause the  people  and  states,  by  the  Common  Law  or 
statutes,  prohibited  the  circulation  of  certain  matter, 
therefore  they  could  not  have  granted  to  the  General 
Government  power  to  carry  the  same. 

(2.)  From  comity  :  Because  the  laws  and  depart- 
ments of  the  General  Government  were  not  designed 
to  defeat  or  play  at "  cross  purposes  "  with  the  state 
laws,  and  so  to  injure  the  people  ;  therefore  what  the 
Common  Law  and  states  prohibited  must  have  been 


88  MR.  wakeman's  reply 

prohibited  tc  the  General  Government,  and  it  must 

protect  its  mails  from  such  excessive  performance  in 
carrying  things  the  Common  Law  and  states  have 
prohibited. 

The  answers  to  all  this  are  simple  and  conclusive: 
(1.)  The  people  and  states  who  made  the  Constitu- 
tion never,m/ac^,  made  any  such  distinction.  There  is 
no  intimation  that  the  post-office  was  to  be  used  to 
carry  "  lawful  matter  ;"  and  for  a  hundred  years  no 
Buch  pretense  has  been  thought  of.  Besides,  we 
have  shown,  on  the  contrary,  that  the  postal  law  is 
in  the  same  words  as  under  the  confederacy,  in 
which  the  General  Government  ran  the  post-offices 
without  any  such  distinction.  It  was  left  entirely 
to  the  state  laws  to  determine  what  matter  should  or 
should  not  be  circulated  by  mail  or  otherwise.  If 
this  power  of  exclusion  is  a  postal  power,  then  it 
belongs  exclusively  to  the  General  Government,  and 
the  states  have,  and  have  had,  no  right  to  punish  for 
mailing  anything,  which  is  absurd. 

(2.)  This  division  of  postal  power  and  service  into 
two  kinds,  excessive  and  7ion- excessive,  according  to 
state  laws  or  the  common  law,  would  have  been 
ridiculously  impracticable,  and  is  so  now.  When- 
ever any  state  or  any  number  of  states  change  their 
laws  about  lotteries,  or  obscene  literature,  or  libels,  or 
blasphemy,  or  any  matter  "  accessory  to  crime,"  then 
it  becomes  an  "  excessive  service  "  for  the  mails  to 
carry  such  matter  in  those  states.  The  United 
States  laws  are  to  be  limited  by  the  state  laws  ;  and 
what  is  lawful  in  the  state  where  the  mail  is  made 
up,  must  be  lawful  elsewhere  and  vice  versa.  But 
how  is  it  that  these  very  Comstock  postal  laws  prohibit 
the  mailing  of  lottery  matter,  which  is  perfectly  inno- 


TO   JUDGE    HURLBUT.  39 

cent  at  Common  Law  over  the  whole  Union,  including 
Kentucky  and  Louisiana, where  lotteries  are  legal  and 
the  states  often  use  them  ?  What  becomes  of  the  ex- 
cessive service  in  such  case?  But  how  can  we  be  sure 
that  every  "deputy  postmaster"  will  be  accurately 
acquainted  with  the  annually  changing  laws  of  every 
state  on  every  topic?  And  if  he  is  not,  he  will 
certainly  be  rendering  excessive  mail  service  in  some 
of  our  forty  states  and  territories,  and  the  Govern- 
ment will  be  particeps  criminis  and  "  accessory  to 
crime  "!     Need  we  say  more  ? 

(3.)  In  the  Senate  debate  of  1836  on  incendiary  liter- 
ature, this  "  comity  "  question  was  presented  by  Mr. 
Calhoun,  not  as  involving  an  excessive  postal  per- 
formance, for  he  never  suggested  anything  so  ridic- 
ulous, but  as  a  matter  of  Federal  duty  not  to  act  at 
cross  2nirposes  with  the  states  which,  in  his  view,  had 
only  made  the  General  Government,  and  which  was 
therefore  surely  their  ministrant.  On  this  ground 
he  claimed  that  incendiary  literature  should  be  non- 
mailable and  non- deliverable  on  inspection  by  the 
deputy  postmaster  in  states  where  it  was  prohibited 
by  criminal  laws.  This  was  decidedly  disallowed 
by  the  Senate,  as  without  ground  in  fact,  as  wholly 
impracticable,  and  as  involving  the  espioiiage  of  the 
mails. 

But  the  Judge  seeks  to  discriminate  between  mail 
matter  that  he  wishes  to  repress  and  this  anti-slavery 
matter,  which  he  says  was  always  innocent  and  mail- 
able because  it  was  so  at  Common  Law  and  in  the 
state  where  it  originated.  But  this  discrimination 
will  not  hold  a  moment.  If  the  state  laws  have 
anything  to  do  with  the  mails,  "  insurrectionary  " 
matter  became  illegal  just  as  soon  as  the  mail  passed 


40  MB. 

into  a  slave  state,  and  should  have  been  destroyed  by 
the  deputy  postmaster  of  that  state,  unless  according 
to  the  Judge's  argument,  the  United  States  should 
be  vi^illing  to  be  particeps  criminis  in  the  violation  of 
the  laws  of  that  state  by  an  excessive  use  of  the  postal 
power.  How  could  there  be  a  more  flagrant  in- 
stance of  "  excessive  power"  than  in  thus  violating 
the  comity  of  a  state,  and  acting  in  direct  cross  pur- 
poses to  its  policy,  safety,  and  criminal  laws  ? 

The  common-law  excuse  mentioned  by  the  Judge  is 
but  another  instance  of  the  utter  futility  of  his  distinc- 
tion, for  these  very  Comstock  postal  laws  began  in 
1872  by  excluding  all  lottery  matter  from  the  mails. 
There  is  certainly  no  common-law  or  postal  reasons 
for  excluding  lottery  matter  any  more  than  "  relig- 
ious "  or  any  other  matter.  In  what  possible  sense 
can  the  carrying  of  it  be  an  "  excessive  postal  ser- 
vice "  ?  Lotteries  were  lawful  at  the  Common  Law, 
and  ip  all  of  the  states  when  the  Constitution  was 
adopted,  and  so  remain  in  several  of  them,  and  in 
Kentucky  and  Louisiana  they  are  specially  legalized 
and  used  by  those  states.  The  postal  laws  in  ques- 
tion declare  all  lottery  matter  non-mailable  in  all 
of  the  states,  whether  legal  in  them  or  not,  and 
a  penalty  is  created  for  doing  an  act  legal  under  the 
law  of  the  place  of  the  contract.  In  view  of  these 
facts,  it  is  evident  the  Judge's  discriminations  will 
not  cover  and  are  worthless  even  as  excuses  for  this 
usurpation. 

(4.)  But  the  Judge  seems  to  suppose  that  there  must 
be  some  special  constitutional  magic  in  the  "  Com- 
raon  LawP  In  the  delivery  of  his  address  he  stop- 
ped to  remind  his  audience  that  they  heard  "nothing 
about  the  Common  Law  at  Faneuil  Hall,"  ag  though 


TO    JUDGE    HUELBUT.  41 

that  had  been  designedly  avoided.  It  was  not 
avoided,  but  was  not  mentioned  because  I  supposed 
that  people  who  knew  their  waj''  to  Faneuil  Hall 
knew  that  the  United  States  have  no  Common  Law 
jurisdiction,  and  nothing  to  do  with  the  punishment 
of  common  law  offenses.  It  seemed  to  me  therefore 
absurd  to  assume  that  any  one  would  argue  that 
because  an  offense  is  one  at  Common  Law  the  United 
States  could  do  indirectly  what  it  had  no  power  to 
do  directly,  that  is,  to  eroct  the  post-office  into  a 
criminal  tribunal  to  detect  and  punish  common-law 
offenses.  No  reasoning  short  of  this  can  find  any 
common-law  excuse  for  these  postal  laws,  and  the 
proposition  is  too  absurd  to  spend  time  upon.  An 
indirect  usurpation  is  the  most  unjustifiable,  as  well 
as  the  most  dangerous  possible. 

But  the  Judge  seems  to  infer  that  it  is  an  "  ex- 
cessive service"  for  the  postal  department  to  be 
engaged  in  doing  acts  that  are  against  the  Common 
Law,  and  that  carrying  matter  condemned  by  the 
common-law  is  of  this  character.  This  is  (1)  sim- 
ply a  confusion  of  a  public  service  with  a  private 
crime,  and  (2)  again,  it  "proves  too  raueh." 

(L)  The  act  of  mailing  anything,  whether  ob- 
scene, blasphemous,  or  libelous,  is  not  a  common- 
law  offense,  although  the  circidation  of  obscene, 
blasphemous,  and  libelous  matter  is  such  an  offense. 
This  circulation  may  be  made  by  express,  railroad, 
boat,  or  mail,  but  no  crime  or  offense  attaches  to  the 
means  of  the  conveyance,  circulation,  or  even  ^9wW^'ca- 
tion.  It  attaches  only  to  the  person  or  party  who 
has  the  criminal  intention,  L  e.,  to  the  sender  at  one 
end  of  the  rDute,  and  to  the  receiver  and  distributor 
at  the  other.     It  is  only  these  persons  who  have  had 


4ii  MB. 

guilty  intent  that  can  be  properly  punished  for 
any  crime.  The  Common  Law  is  ready  for  them 
in  every  state  of  the  Union,  and  is  fully  sufficient. 
It  only  remains  to  those  who  would  protect  youth 
and  the  public  purity  to  see  that  it  is  enforced,  as 
we  shall  show  when  we  come  to  that  question. 

But  (2)  the  notion  that  the  Common  Law  makes 
the  postal  service  excessive  or  unlawful  in  some  way, 
when  possibly  used  as  an  instrument  to  aid  in  com- 
mitting offenses,  "  proves  too  much  "  in  three  ways 
at  least. 

It  may,  nay,  must  be,  applied  to  all  matter  that 
may  be  used  for  criminal  purposes,  especially  blas- 
phemous and  libelous  publications  which  are  com- 
mon-law offenses  as  much  as  the  obscene.  It  cannot 
morally  or  consistently  be  limited  to  the  latter  only, 
for, 

It  makes  the  postal  department  morally  liable 
for  the  innocence  from  crime  of  all  mailed  matter  as 
far  as  the  common  law  is  concerned.  If  this  liabil- 
ity exists  it  is  a  terrible  responsibility  which  the 
National  Government  must  exercise  as  thoroughly 
as  possible,  or  be  guilty  of  all  of  the  crimes  that  its 
espionage  might  have  prevented. 

The  "  deputy  postmasters "  must  be  so  edu- 
cated in  the  large  number  of  common-law  offenses 
that  they  can  unerringly  detect  and  confiscate  all 
matter  committing  or  tending  to  commit  such  of- 
fenses ! 

Surely  no  rational  reader  will  wish  one  to  follow 
further  an  argument  fraught  with  such  absurdities. 

5.  We  are  led  by  the  foregoing  to  another  point 
which  the  Judge  seems  to  think  very  terrible.  If  the 
National   Government   does  not  exclude  from  the 


TO    JUDGE    HURLBUT.  ^ 

mails  matter  criminal  at  Common  Law  or  by  tb« 
statute  laws  of  the  several  states,  then  it  becomes 
not  only  particeps  criminis,  but  actually  makes 
innocent^  matter  which  was  criminal  in  its  very 
inception.  And  this  it  cannot  do;  therefore,  the 
matter  remains  criminal,  and  the  National  Govern- 
ment, having  such  matter  in  its  exclusive  possCosion 
and  control,  must  destroy  it,  and  punish  the  offender 
who  placed  it  there. 

The  answer  is  very  simple  :  The  sender  is  guilty, 
and  his  matter  criminal  by  virtue  of  the  Common 
Law,  or  the  state  laws,  but  when  the  matter  passes 
into  the  mails  it  passes  from  those  laws  into  a  power 
that  has  no  Common  Law,  or  state  law,  or  general 
jurisdiction.  It  does  not  become  innocent  before  the 
laws  that  made  it  criminal,  but  it  confers  no  addi- 
tional jurisdiction  on  the  General  Government  to  pun- 
ish for  those  crimes.  The  post-office  has  no  moral 
purpose  or  quality.  It  does  not  take  a  fee  for  carry- 
ing obscene  or  blasphemous  literature,  but  simply  for 
carrying  so  much  mailable  matter,  without  regard 
to  the  sentiments  of  that  matter.  It  renders  nothing 
innocent  because  it  has  no  moral  purpose  or  inten- 
tion. It  exists  for  the  general  "  conveniency  "  of  the 
public,  good,  bad,  and  indifferent,  and  carries  mat- 
ter of  the  same  quality.  Suppose  the  Constitution 
had  granted  to  Congress  the  power  "  to  establish 
railroads  between  the  states,"  would  it  have  the 
right  to  discriminate  between  the  sentiments  of 
citizens  as  long  as  they  were  enclosed  in  decent 
clothes,  paid  their  fare,  and  behaved  just  as  well  as 
other  passengers  ?  Would  it  make  any  difference 
whether  the  passenger  was  a  republican  or  democrat 
or  independent?  whether  he  carried  the   Bible   or 


44  MR.  wakeman's  reply 

"Cupid's  Yokes"  concealed  on  his  person?  Sup- 
pose such  a  traveler  should  be  a  criminal  at  common 
and  state  law,  suspected  by  the  conductor  to  be  flee- 
ing from  justice,  or  going  to  commit  a  crime,  would 
it  be  the  duty  of  the  U.  S.  conductor  to  stop  the 
train,  search  that  passenger,  and  put  him  off  the 
train,  or  arrest,  or  punish  him  ?  Jf  he  did  not,  would 
he,  or  the  Goverment,  be  guilty,  asparticeps  criminis 
of  that  crime,  or  of  an  "excessive  performance"  of 
railroad  service  ?  or  of  making  the  criminal  passen- 
ger innocent  ?  But  this  leads  to  the  same  list  of  ab- 
surdities we  have  noted  under  the  last  point,  and 
certainly  need  not  repeat  again. 

This  concludes  all  the  arguments  the  Judge  has 
put  forth  on  the  question  of  the  power  of  the  General 
Government  to  enact  espionage  postal  laws.  May 
we  not  say  that  they  are  all  useful  as  illustrations  of 
the  futility  of  the  claim  ?  No  ingenuity,  however 
great  or  original,  can  make  twice  two  five. 

lY.  We  now  reach  the  practical  application  of 
this  power,  assuming  it  to  exist,  to  the  freedom  of 
the  press. 

The  Judge  argues  that  this  power  of  espionage 
would  be  no  abridgment  of  freedom  of  the  press, 
because  such  freedom  at  Common  Law,  as  witness 
Blackstone,  means  only  freedom  from  previous  cen- 
sorship. We  are  reminded  "that  every  freeman 
has  the  undoubted  right  to  lay  what  sentiments  he 
pleases  before  the  public;  to  forbid  this  is  to  destroy 
the  freedom  of  the  press."  No  further  definition  is 
needed  for  this  question  in  hand,  but  it  should  not 
be  granted  that  freedom  of  the  press  in  America 
does  not  mean  more  than  freedom  from  previous 
censorship, — freedom  in    fact    from    hundreds    of 


Tc    JUDGE   HURLBFT.  45 

grounds  of  prosecution  after  publication  authorized 
by  the  common  and  ecclesiastical  laws  of  England. 
There,  the  freedom  is  also  limited  by  the  irresponsi- 
ble will  of  Parliament;  Jiere,  it  is  granted  and  to  be 
sustained  under  constitutions  guaranteeing  the  lib- 
erty of  religious,  political,  moral,  and  even  personal 
discussion,  subject  only  to  liability  before  a  common- 
law  jury  for  injury  actually  done  thereby. 

But  there  is  no  need  of  going  beyond  the  above 
quoted  definition  of  Blackstone  to  show  that  the 
power  the  Judge  contends  for  is  fatal  to  the  freedom 
of  the  press  in  the  very  sense  that  he  uses  the  term. 
Mr.  Justice  Field  in  his  opinion  on  this  subject  in 
Jackson's  case  has  answered  the  Judge  conclusively. 
He  says  :  *'  Nor  can  any  regulations  be  enforced 
against  the  transportation  of  printed  matter  in  the 
mail,  which  is  open  to  examination,  so  as  to  interfere 
in  any  manner  with  the  freedom  of  the  press.  Liberty 
of  circulation  is  as  essential  to  that  freedom  as  liberty 
of  publishing  ;  indeed,  icithout  the  circidation,  the 
publication  icould  be  of  little  value.'''' 

As  we  showed  in  the  Faneuil  Hall  speech,  Mr. 
Justice  Field  drew  exactly  the  wrong  conclusion 
from  these  premises,  but  they  are  perfectly  sound 
and  dispose  of  the  Judge's  argument  at  once.  The 
freedom  of  the  mails  is  but  a  part  of  the  freedom 
of  publication,  whic^  is  the  meaning  of  the  words 
"freedom  of  the  press."  Publication  means  unre- 
stricted circulation.  A  partial  limitation  of  that  by 
espionage,  destruction  of  matter,  etc.,  is  a  "  prior 
censorship"  of  the  Press  of  the  most  certain  and 
effectual  kind,  and  now  more  so  than  ever,  when  the 
post-office  is  its  indispensable  instrument.  Such 
postal  laws  take  away  "  the  undoubted  right  every 


46  MR.  wakeman's  reply 

freeman  has  to  lay  what  sentiments  he  pleases  before 
the  public^''  and  to  stand  the  consequences  under  the 
laws  of  the  stiates.  For,  as  the  Judge  truly  remarks, 
"  The  states,  and  not  the  Federal  Government,  have 
the  jyoicer  to  punish  abuses.''"'  Plainly,  the  offender  is 
to  answer  before  the  common-law  juries  of  the 
states  for  his  abuses.  The  Constitution  forbids 
Congress  in  any^way  from  "abridging  freedom  of 
the  press  ;"  it  does  not  in  any  way  authorize  Con- 
gress to  punish  abuses  thereof.  To  protect,  and  not 
to  judge,  limit,  or  destroy  is  the  Federal  office  in  this 
matter.  In  view  of  this,  how  inconsistent  is  it  to 
say  that  the  Federal  Government  may,  constitution- 
ally, make  publication  practically  impossible  by  its 
postal  laws  !  Such  censorship  is  a  prohibition  which 
prevents  "  the  laying  of  sentiments  before  the  pub- 
lic," which,  in  Blackstone's  definition,  is  expressly 
"  to  destroy  the  freedom  of  the  press." 

The  post-office  is  the  life  of  the  press  ;  when  you 
take  away  the  freedom  of  the  former,  the  latter  falls 
with  it.  Liberty  of  printing  is  nothing,  unless  the 
printed  matter  can  be  freely  circulated  ;  and,  as  the 
Judge  said  at  the  outset,  "without  liberty  of  print- 
ing a  democratic  republic  cannot  exist.  A  plea  for 
the  former  is  a  plea  for  its  life."  It  is  with  deep  regret 
that  I  find  the  Judge  closing  his  public  life  with  a 
plea  which,  it  seems  to  me,  the^e  words  condemn. 

In  England  the  incompatibility  of  the  freedom  of 
the  press  with  post-office  espionage  has  been  more 
and  more  recognized  in  practice,  and  by  laws  re- 
quired by  popular  sentiment. 

In  our  country  this  whole  espionage  business  was 
sought  to  be  rendered. impossible  by  the  two  most 
important  features  of  our  government. 


TO   JUDGE   HURLBUT.  47 

1.  The  separation  of  the  state  and  Federal  Gov- 
ernments, and  the  committal  of  the  post-offices  to  be 
"  establishecV^  by  the  latter  only. 

2.  The  separation  of  the  ecclesiastical  and  spirit- 
ual powers  from  the  temporal  governments,  leaving 
the  former  to  instruct,  advise,  and  persuade,  and  the 
latter  to  act,  judge,  and  punish. 

(1.)  We  but  echo  the  voice  of  the  statesmen  who 
framed  the  Constitution,  who  said  that  the  "  inci- 
dental" extension  of  Federal  power  and  criminal 
jurisdiction  would  be  the  grave  of  American  liberty. 
The  laws  in  question  are  unmistakable  instances  of 
such  extension.  Not  only  was  there  no  grant  of  it 
in  the  establishment  of  post-offices,  but  Jefferson 
and  his  compeers,  after  securing  freedom  of  speech 
and  the  press,  would  never  have  been  so  foolish  as  to 
have  left  this  power  unrestricted  if  it  had  been  even 
dreamed  of.  They  would  never  have  left  open  a 
power  by  which  the  press  could  be  stricken  down  at 
will  under  the  incidental  prohibition  and  espionage 
power  of  Congress  and  the  postmasters. 

No  better  illustration  of  the  danger  of  this  power, 
even  in  its  milder  forms,  could  be  found  than  the 
method  of  espionage  and  the  congressional  statute 
proposed  by  the  Judge  himself  at  the  close  of  his 
address.  Under  them  the  postmasters  are  to  search 
the  mails  and  retain  what  they  and  a  United  States 
commissioner  deem  ohjectionahle  on  the  ground  of 
obscenity,  with  trial  aftericards  before  a  United 
States  court.  The  property  is  thus  unconstitu- 
tionally condemned  without  trial,  before  it  has 
reached  the  public  at  all,  or  done  any  injury, 
and  by  a  tribunal  practically  secret,  irresponsible, 
and    foreign    to  the    people.      The    supposed    of-j 


48  MB.  wakeman's  reply 

ender,  or  at  least  his  property,  is  destroyed  by 
an  Inquisition  without  ever  having  reached  the 
constitutional  judges — the  public  and  a  jury  of  his 
state  and  vicinage.  This  as  the  final  result,  is  the 
freedom  of  the  press,  and  all  that  the  Judge  would 
leave  us  of  American  liberty  !  If  the  post-office  is, 
for  any  purpose  or  pretense  however  specious, 
allowed  to  become  a  United  States  criminal  tribunal, 
its  jurisdiction  is  unlimited,  for  it  may  judge  of 
everything  mailed,  and  so  reach  every  man,  woman, 
and  child.  It  must  also  use  only  powers  that  belong 
to  the  Inquisition,  secret  examination,  espionage, 
and  decoy,  for  without  these  it  can  do  nothing,  and 
such  postal  laws  cannot  be  executed.  The  United 
States  jurisdiction,  if  once  allowed,  must  and  can  only 
be  exercised  by  means  of  a  criminal  procedure  en- 
tirely foreign  to  our  institutions,  and  which  proves 
at  once  that  this  power  to  use  them  was  never 
granted  to,  and  must  never  be  construed  to  be  given 
to,  the  United  States. 

(2.)  These  postal  laws  are  but  another  form  of  the 
re-union  of  church  and  state.  They  were  obtained 
by  the  representatives  of  certain  "  religious  "  sects 
so  as  to  give  them,  through  their  agents,  the  power 
of  supervising  public  morals  according  to  their 
views,  and  in  their  interest,  by  means  of  the  tem- 
poral government  and  criminal  prosecutions  admin- 
istered by  their  "  agent."  To  this  end  the  power  of 
espionage  and  decoy  were  surreptitiously  placed 
over  the  mails  with  terrible  penalties,  which  have 
nothing  to  do  with  postal  purposes  or  the  post-office 
whatever.  The  Comstock  laws  of  the  state  of  New 
York  have  been  brought  to  sustain  these  national 
lavrs  by  statutes  establishing  a  Society  for  the  Sup- 


TO    JUDGE    HURLBUT.  49 

pression  of  Vice — practically  under  theological  in- 
fluences— to  work  them,  to  give  half  of  the  fines  to 
their  agent,  and  to  even  authorize  arrest  without 
warrant. 

The  success  of  this  ecclesiastical  attempt  at  tem- 
poral government  has  brought  into  play  another 
"  Society  for  the  Suppression  of  Crime  "  with  a  distin- 
guished clergyman  at  its  head,  who  is  actively 
engaged  in  disciplining  our  state  Governor  and 
Courts.  Besides  these  two  flourishing  specialties  of 
spiritual  power,  we  have  many  other  societies  for 
this  and  that  "  good  object,"  backed  by  state  laws 
specially  obtained  to  help  the  clerical  influences  to 
make  and  administer  the  laws  of  tJcis  w?or^c?  instead 
of  looking  after  the  next. 

Our  temporal  common  law  government  is  pretty 
well  abdicated/  Its  duty  of  administering  to  the 
common  temporal  wants  and  necessities  of  the  peo- 
ple is  delegated  to  corporations  and  monopolies, 
who  tax  and  fleece  the  ^^eople  without  mercy.  The 
duty  of  protecting  the  people  by  administering  the 
common  criminal  law  through  the  municipal  police, 
District  Attorneys,  and  Grand  Juries,  preparatory  to 
action  by  courts,  is  handed  over  to  these  amateur 
societies,  half   theological   and   half  criminal. 

This  whole  method  of  legislation  is  contrary  to  our 
institutions,  ineffectual  and  disgusting.  No  power  in  a  i 
democratic  republic  should  execute  the  criminal 
laws  except  oflicers  thereof  responsible  to  the  people. 
These  special  agents  are  responsible  to  no  one  but 
the  church  influences  which  appoint  and  sustain 
them.  They  are  simply  the  reappearance  of  the 
Christian  Inquisition. 

Again,  this  method  of  administering  criminal  law 


00  MR.    WAKEMAN'S    REFLT 

is  ineffectual.  It  lives  by  torturing  and  scotching  the 
snakes  of  vice  and  crime,  but  never  killing  them. 
This  espionage-detective  system  is  the  nursery  of  tho 
crime  upon  which  it  feeds.  The  crime  is  the  stock 
upon  which  the  amateur  official  makes  a  "raid  "  from 
time  to  time  to  keep  him  in  salary  and  fame,  but  which 
he  would  really  no  more  destroy  than  the  poultryman 
would  kill  off  all  of  his  stock  at  once.  Besides  this 
reason,  these  espionage  postal  laws  can  never,  from 
their  very  nature,  be  sufficient  or  effective.  The 
only  way  is  to  break  up  the  manufacturies  and  fount- 
ains of  the  mischief  under  the  state  laws  and  by 
their  officers,  as  was  done  and  can  readily  be  done 
again.  Let  this  whole  business  of  private  and  sec- 
tarian detective  criminal  prosecution  be  abolished, 
and  then  the  police  and  prosecuting  officers  can,  by 
the  press  and  people,  be  made  to  see  and  feel  the 
responsibility  that  officially  rests  upon  them,  to  en- 
force the  laws  effectively  and  impartially. 

Is  it  not  mortifying  if  not  disgusting,  after  a  hun- 
dred years  of  trial,  to  see  our  post-office  and  state 
criminal  laws  handed  over  to  an  Inquisition  and 
societies  of  this  kind  ?  But  when  we  find  the  lead- 
ers of  a  League  expressly  formed  "to  separate 
church  and  state  "  joining  in  the  effort  to  render  this 
Inquisition  constitutional,  what  words  ought  to  ex- 
press our  feelings  ! 

V.  This  brings  us  to  consider  the  motives  that 
lead  some  Liberals  to  try  to  make  out  this  power  to 
be  constitutional.  These  motives  are  a  desire  to  protect 
public  decency  and  the  morals  of  youth.  I  yield  to 
no  one  in  my  desire  to  accomplish  these  objects,  but 

1  know  they  cannot  be  effected  by  the  lawlessness 
of  usurpation,  or  the  sentimentalism  that  is  regard- 


TO    JUDGE    nURLBUT.  61 

less  of  consequences.  From  the  Judge's  proposed 
state  law  on  this  subject  I  dissent,  chiefly  because  it 
is  an  attempt  to  supplant  the  Common  Law  which 
prevails  in  all  the  states  except  Louisiana,  for  which 
state  Mr.  Livingston's  code  was  proposed,  but  never 
adopted.  The  section  which  the  Judge  wishes  to 
revive  from  that  oode  omits  the  important  point  of 
protecting  the  general  public,  as  well  as  youth  from 
offenses  against  pudicity  and  decency.  This  is  an 
important  element  in  the  common-law  offense  known 
as  the  circulation  of  obscenity,  and  it  is  one  I  am 
unwilling  to  omit.  The  privacy  and  sacredness  of  the 
human  form  and  its  physical  ofiices  are  protected  at 
Common  Law,  and  all  pictures  or  descriptions  of 
them  really  obscene  are  contraband.  My  views  on 
this  subject  were  expressed  in  the  seventh  resolution 
at  the  Liberal  Convention  at  ^Vatkins  last  summer, 
and  I  have  never  since  seen  reason  to  chapge  them. 
It  will  be  observed  that  they  are  much  stronger  than 
the  Judge's  proposal,  but  they  only  embody  the  letter 
and  spirit  of  the  Common  Law,  which  needs  no  legis- 
lation or  societies  or  postal  laws  or  agents  to  accom- 
plish more  than  they  can  do: 

"  7.  Resolved,  That  we  regard  the  power  to  sup- 
press obscenity  and  indecency  to  be  one  of  those 
powers  reserved  in  the  U.  S.  Constitution  to  the  peo- 
ple and  the  states,  and  that  it  should  be  exercised 
by  them,  not  by  the  passage  of  laws  surreptitiously 
for  religious  sects  and  partisans,  but  by  laws  [if  any 
are  needed]  passed  under  general  consent  and  after 
public  notice,  and  which  can  apply  only  to  unequiv- 
ocal and  well-defined  cases;  that  we  regard  the  true 
cure  for  obscenity  and  all  danger  therefrom  to 
be  the  care  of  children  by  their  parents  and  guar- 


62  MR.  wakeman's  reply 

dians,  and  their  truthful  education,  at  the  proper 
age,  as  to  the  nature  and  duties  of  the  sexual  rela- 
tions ;  that  profanity,  obscenity,  and  debauchery  are 
the  sure  results  of  retrograde  and  repressive  theolo- 
gies ;  that  the  Liberal  cause  is  the  cause  of  knowl- 
edge, liberty,  and  purity,  which  are  the  best  guar- 
antees of  each  other,  and  that  this  Convention 
hereby  emphatically  puts  itself  upon  record  as  in  no 
sense  sympathizing  with,  but  as  holding  in  severe 
reprobation,  those  who  seek,  by  the  circulation 
through  the  mails  or  otherwise  of  literature  of  an 
obscene  spirit  and  character,  to  corrupt,  debauch, 
and  inflame  the  public,  and  especially  youthful 
minds  ;  and  it  hereby  declares  its  emphatic  approval 
of  the  use  of  all  such  means  as  may  be  within  the 
legitimate  scope  of  the  government  to  secure  the 
repression  both  of  the  issue  and  circulation  of  such 
matter  by  the  press." 

After  careful  examination  I  find  that  the  Common 
Law  in  force  in  every  state  and  territory,  except 
Louisiana,  is  fully  sufficient  to  effect  all  that  can  be 
reasonably  desired  on  this  subject.  It  can  be 
enforced  in  any  state  or  at  any  point  from  whence 
the  evil  is  sent,  and  is  a  perfect  answer  to  the 
demands  of  the  friends  of  purity.  Statutes  and 
definitions  on  this  subject  are,  as  Livingston  says, 
often  worse  than  the  offenses  themselves.  The  wis- 
dom of  ages  embodied  in  the  Common  Law  does  not 
undertake  to  define  obscenity,  but  w^hen  the  case 
arises  its  officers  send  it  before  the  judge  and  jury 
of  the  vicinage  who  dispose  of  it  so  as  to  protect 
the  public  and  youth.  The  repeal  of  all  statutes  na- 
tional and  state  on  this  subject  would  be  a  return  to 
common  sense  and  Common  Law  in  every  way  desir- 


TO    JUDGE    HURLBUT.  63 

able.  The  Judge  has  done  no  more  important  ser- 
vice than  in  fostering  the  spirit  of  reliance  upon  the 
Common  Law  instead  of  artificial  statutes  and  socie- 
ties. It  would  be  well  not  to  set  it  aside  even  for 
Livingston.  Let  the  reader  make  its  acquaintance 
in  the  "  Hand  Books  on  Criminal  Law,"  by  Bishop 
or  Wharton,  and  he  will  be  surprised  at  its  simplicity 
and  wisdom.  The  penalties  should  be  modified  to 
the  age  in  which  we  live;  all  that  has  been  foisted 
into  it  by  religious  zealots  in  their  efforts  to  make 
Christianity  a  part  of  it  should  be  removed  as 
foreign,  and  then  I  know  of  no  better  or  safer  crim- 
inal code. 

Instead  of  yielding  to  the  Judge  on  the  Common 
Law  I  will  imitate  him,  and  apply  to  it  the  "  loving 
satisfaction  "  he  expresses  over  Livingston.  "  Here  I 
take  my  stand.  I  shall  ask  no  further  limitation 
of  the  liberty  of  printing  than  that  imposed  by  the 
Common  Law  under  the  constitution  of  my  state  and 
country.  I  incline  to  ask  the  protection  of  the  gen- 
eral public  and  of  youth  from  having  obscenity  in 
any  form  exposed  to  their  view,  or  foisted  upon 
them  by  mail,  express,  or  otherwise,  but  let  the 
offenses  be  punished  by  the  states  and  not  the  Fed- 
eral Government — they  only  having  power  to  punish 
|i.buses.  This  is  the  Common  Law  ;  it  is  constitu- 
tional ;  it  is  called  for  by  the  cultivated  sentiments 
of  mankind  ;  and  it  is  conservative  of  the  morals  of 
youth.  If  we  maintain  the  residue  of  our  criminal 
code,  let  us  by  no  means  omit  that." 

But  let  us  by  no  means  permit  the  criminal  legisla- 
ture and  law  of  the  country  to  pass  into  sectarian 
hands  under  the  belief  that  the  Common  Law  and  its 
process  is  obsolete  or  has  "  faded  from  the  legal  hori- 


54  MR.  wakkman's  reply 

zon."  Liberty  and  safety  are  to  be  found  in  it  now 
as  ever. 

VI.  The  foregoing  points  dispose  of  all  the  Judge's 
address  except  his  own  motive  for  making  it,  which 
is  the  key  to  it,  and  brings  up,  perhaps,  the  most 
important  subject  of  all.  For  that  reveals  the  con- 
viction which  has  made  such  an  apology  for  an 
unconstitutional  law  possible  from  him  and  others. 

It  is  an  appeal  to  the  Liberals  to  be  measured 
by  the  moral  standards  of  their  conservative  oppo- 
nents, or  else  it  is  merely  an  appeal  to  their  coward- 
ice, which  the  Judge  cannot  intend.  In  either 
aspect  every  intelligent  Liberal  must  dissent. 
"  Elder  Sniffles  "  must  not  be  allowed  to  settle  the 
criterion  of  morality  for  Liberals,  although  his  con- 
gregation unceasingly  cry  "  How  true  that  is  !"  Let 
us  see  for  a  moment  how  the  subject  stands  before 
them. 

Between  the  retrogrades  and  the  progressives  lies 
"  the  means,"  as  was  pointed  out  in  the  Faneuil  Hall 
speech,  composed  of  all  "mean"  people,  and  the 
respectable  acquiescent  majority  with  Elder  Sniffles 
as  their  mouth-piece.  They  have  no  conception  of 
a  state  of  mifid  or  morals  beyond  their  own  ideal. 
All  different  from  that,  they  think  below  it  and  act 
and  speak  accordingly.  The  Judge  would  recog- 
nize this  readily  enough  as  to  everything  except 
"  morality,"  and  as  to  that  only  he  urges  Liberals  to 
accept  the  Elder's  standard.  Whether  they  will  or 
not,  will  be  determined  not  by  the  cry  of  the  latter's 
congregation,  but  by  honest  attempts  to  adapt  new 
modes  of  life  to  the  demands  of  an  ever  changing, 
social  environment.  In  these  efforts  new  sugges- 
tions and  even  new  steps  forward  in  morality  will  be 


TO    JUDGE    nURLBUT.  l^ 

taken  in  future  as  they  have  in  the  past,  only  it  is  to 
be  hoped  with  the  advantage  of  some  knowledge  of 
social  science.     Each  step  will  be  accompanied  with 
the  groans  of  our  Judge  and  the  Elder  lamenting 
the  degeneracy  of  their  age.     It  would  indeed  be 
better  and  safer  if  they  could  be  limited  to  groans, 
but  they  will  occasionally  resort  to  argument  and 
then  the  danger  becomes  real.     They  thereby  pre- 
cipitate the  change  by  making  the  weakness  of  the 
old  transparent.     The  extremes  are  then  too  ready 
to  advance  and  so  frighten  the  conservatives  into 
repressive  legislation  and  violence.     So  it  was  in  the 
contest  between  slave  labor  and  free  labor,  and  now 
the   friends  of  Mr.    Heywood   bring   on   a   similar 
social  contest  between  slave  love,  with  its  obscenity, 
and  free  love,  with  purity,  as  they  would  describe 
it.     The  danger  is  that  the  weakness  of  the  argu- 
ments  of  the   Judge   and   Elder   will   get   us   into 
premature  social  changes.     For  instance,  they  both 
agree  thoroughly  that  Freelove  is  "  unnatural,"  and 
yet  in  the  same  breath,  almost,  they  joke  about  its 
being  a  return  to  the  state  of  nature  of  the  "  man-like 
ape  or  ape-like  man."     This  talk  about  reverting  to 
the  man-like  ape  is  not  funny  in  the  presence  of 
Herbert  Spencer's  "  Sociology,"  where  every  form  of 
sexual  relation  is  found  to  be  "  natural "  to  the  human 
race  according  to  its  history  and  environment.    Such  i. 
arguments  about  "reversal"  have  been  thrown  up 
by  Comte,  Spencer,  and  Fiske,  but  have  no  effect  on 
the  "  Freelovers  "  who  contend  that  it  is  simply  a 
"  backwardness  in   coming   forward "  in  those  who 
make  it,  because  they  cannot  conceive  of  any  social 
state  better  than  the  one  that  inevitably  gives  orphan- 
age, widowhood,  forced  maternity,  or  celibacy,  pros- 


50  MR.  wakkman's  eeplt 

titution,  private  vices  unspeakable,  marriages  often 
worse  than  death,  and  last,  and  least,  "  obscenity  " 
itself.  The  Freplovers  show  that  the  natural  state  of 
society  was  the  physical  and  the  sexual  slavery  of 
woman  to  man  both  within  the  tribe  and  when  cap- 
tured in  war  ;  that  all  marriage  systems,  and  even 
forms,  are  but  continuation  of  this  slavery,  until 
finally  the  Romish  Church  recently  instituted  close 
monogamy,  so  that  one  woman  is  "  given  away  "  to 
one  man  whom  she  promises  to  obey.  Now  every 
shade  of  the  "  Freelove  Reformer,"  fnstead  of  desir- 
ing to  return  to  any  state  of  nature  of  this  kind,  is 
striving  to  emancipate  woman  from  it,  and  to  achieve 
an  independence,  culture,  purity,  protection,  and 
sustenance  which  shall  render  such  slavery  as  im- 
possible to  women  as  it  has  been  made  to  the  laborer, 
who  was  equally  a  slave  or  serf  when  monogamy  was 
enforced  upon  woman  as  the  Church  took  away  her 
liberty  and  rights  under  the  Roman  law. 

Such  considerations  as  the  foregoing  will  always 
convince  the  greater  part  of  the  Liberals  that  though 
they  cannot  agree  fully  with  Mr.  Ileywood,  yet 
they  cannot  consistently  follow  the  Judge's  advice 
(singular  for  a  judge  !)  and  sacrifice  him,  by  lynch 
or  mob  law,  to  please  his  venerable  friend  "  the 
Elder."  They  will  trust  to  the  common  sense  of  the 
people,  and  the  law  of  evolution,  to  effect  needed 
changes  in  laws  and  social  life,  and  to  modify  the 
extremists  who  would  precipitate  or  retard  social 
progress.  The  Reformers  may  seem  to  advocate  too 
rashly  the  opinion  of  Hamlet  that  "  There  is  nothing 
eitber  good  or  bad,  but  thinking  makes  it  so."  But 
this  t?iinhingy  or  opinion,  is  also  dependent  upon 
social  laws  and  changes  that  science  is  including  in 


to   JUDGE    nURLBTTT.  67 

her  own  domain  of  order,  whereby  gradual,  and 
therefore  beneficial,  growth  and  progress  are  secured. 
In  the  end,  by  these  means,  and  not  by  mob  law, 
purity  and  the  family  will  be  indicated,  as  Herbert 
Spencer  intimates  at  the  close  of  his  "Sociology." 

The  real  answer  to  the  "  Freelovers  "  is  that  they 
have  not  as  yet  been  able  to  practically  realize  their 
aspirations  in  such  a  way  as  to  make  them  more  use- 
ful to  society  than  the  monogamic  marriage.  As  soon 
as  they  do,  it  will  be  seen  that  no  form  of  the  sexual 
relation  was  ever  natural  or  permanent  in  the  human 
race,  and  that  to  talk  of  the  "emancipated  "  woman 
as  a  return  to  the  old  slave  victim  of  the  lust  of  tfio 
tribe  or  of  one  man  is  simply  ridiculous.  The  argu- 
ments borrowed  by  the  Judge  from  the  Elder  on  this 
subject,  so  easily  and  idly  thrown  out,  are  just  7uch 
as  from  their  unhistorical  character  in  the  past,  and 
their  unscientific  glance  into  the  future,  are  in  danger 
of  aiding  the  extreme  progressives  in  bringing  upon 
us  the  disintegration  of  oar  present  marriage  forms 
rashly  and  not  for  the  public  good.  Such  subjects 
are  still  much  more  tender  than  those  of  property  and 
government,  and  should  never  be  entered  upon  by 
those  who  do  not  recognize  that  society  is  indeed  a 
living  organism,  and  that  social  experiments  too 
closely  resemble  vivisection  to  be  ever  rashly  under- 
taken. The  true  reformer  will  prepare  his  path,  and 
know  well  in  every  step  of  progress  he  takes  where 
his  foot  can  be  safely  put  down  before  he  takes  it  up. 
Unfortunately, /oo^5  will  rush  in  where  angels  fear 
to  tread  ;  then  people,  of  the  state  of  mind  of  the 
Judge  and  the  "  Klder,"  are  perfectly  convinced  that 
no  step  must  ever  be  taken  at  all,  and  that  by  statute, 
or  even   "mob  law,"  as  the  Judge  intimates,  all 


'58  MR.  wakeman's  eeplt 

chaoge  must  be  forbidden,  and  no  man  be  allowed  to 
make  a  fool  of  liimself. 

It  is  quite  evident  that  but  for  this  state  of  mind 
the  Ju  Ige's  address,  and  certainly  its  closing  para- 
graphs, would  never  have  been  written.  It  is  really 
an  apology  for  the  Liberal  League  addressed  to 
Elder  Sniffles'  congregation.  It  yields  r.ll  the  power 
into  their  hands  in  the  vain  hope  that  they  would 
not  use  it  to  hurt  Liberalism.  Ihe  proper  and  ex- 
exprcted  answer  to  this  surrender  has  been  made  by 
the  most  prominent  and  intellectual  successor  of  the 
worthy  Elder,  the  Rev.  Joseph  Cook,  in  his  Boston 
Prelude,  on  this  Syracuse  Congress.  He  finds  the 
Judge  to  be  the  advocate  of  "  looseness j''''  and  to  all 
intents  and  purposes  as  bad  as  the  "repealers" 
themselves.  Thus  will  it  always  happen  when  the 
leaders  of  light  and  liberty  give  up  their  rights  and 
seek  approval  from  the  representatives  of  supersti- 
tion and  bigotry.  Liberals  will  probably  prefer  to 
stand  by  their  own  convictions,  and  the  right  to 
express  them  under  the  Constitution. 

Nor  are  they  to  be  held  responsible  in  making 
such  claim,  for  the  convictions  of  each  other,  except 
as  they  expressly  assume  them.  The  proper  way  is 
to  regard  all  Liberal  people  as  substantially  divided 
like  the  French  Assembly  into  the  Right,  the  Center, 
and  the  Left.  All  are  members  of  the  large  mass  of 
Liberalism,  but  neither  representing  nor  responsible 
for  the  others.  On  the  Right  might  be  placed  the 
editor  of  llie  Index  and  his  just  hatched  Liberal 
League  of  America.  On  the  Left  would  stand  Mr. 
Heywood  with  his  Freelove  conventions.  Between 
the  two  as  the  Center,  we  find  the  great  mass  of  the 
Liberals  of  the  country  in  various  organizations,  and 


TO    JUDGE    HURLBUT.  C7 

both  seek  the  same  thing — the  most  effective  sup- 
pression of  corrupt  literature? 

4.  Is  it  quite  the  right  thing  to  assume  that  men 
and  women  unconvicted  of  crime  are  abettors  of 
crime  because  they  arc  not  willing  to  have  crime 
punished  by  unconstitutional  laws  ? 

5,  After  all,  is  not  the  demand  for  that  sort  of 
literature — the  supply  of  which  to  children  and 
youth  all  decent  people  wish  to  suppress — due  chief- 
ly to  the  parents  themselves,  who  meet  the  natural 
curiosity  of  their  children  either  with  evasions, 
frowns,  or  absolute  lies  ? 

G.  Grant  that  there  are  bad  people  in  the  old 
League — and  I  indignantly  deny  that  one  particle  of 
proof  of  that  has  yet  been  presented — how  is  the 
new  League  to  keep  them  out  of  its  pale,  a  thing 
which  xKt  church  has  ever  yet  succeeded   in  doing  ? 

7.  Why  shall  we  not  all  come  back  to  the  faith 
that  free  speech  will  cure  its  own  evils  so  far  as  they 
can  be  cured  ? 

8.  If  the  mail-carrier  is  responsible  for  the  immo- 
rality of  what  he  carries,  how  does  he  escape  that 
responsibility  by  either  shutting  his  eyes  or  allowing 
the  package's  to  be  sealed  ?  If  the  logic  of  the 
Comstock  law  is  at  all  superior  to  that  of  a  donkey, 
why  should  we  not  have  everything  which  goes 
through  the  mails  open  to  the  eyes  of  a  censor 
morum?  Why  not  make  clean  and  thorough  work 
if  we  undertake  it  at  all  ?  Why  allow  the  detestable 
criminal  to  defeat  us  by  a  Utile  mucilage  and  a  high- 
er-priced stamp  ?  Are  the  friends  of  virtue  deter- 
mined to  make  practical  fools  of  themseWes  ? 

A  Fkiskd  of  Both  Leagues. 


/      EXTKACTS    FKOM    THE    CONSTITUTION 
OP 

b   NATIONAL  DEFENSE  ASSOCIATION. 


Article  II. — The  objects  of  this  Association  are ; 

To  investigate  all  questionable  cases  of  prosecution 
yinder  what  are  known  as  the  Comstock  Laws,  State 
/or  National ;  and  to  extend  sympathy,  moral  support 
and  material  aid  to  those  who  maybe  unjustly  assailed 
by  the  enemies  of  free  speech  and  a  free  press. 

To  rescue  those  who  may  be  con\dcted  and  impris- 
oned for  no  other  crime  than  exercising  the  natural 
right  to  think  their  thoughts  and  express  them  orally 
or  in  piint. 

To  defend  honest  investigators  in  aU  departments 
of  science,  and  to  uphold  the  right  of  the  people  to 
acquire  a  useful  knowledge  of  human  physiology. 

Finally  to  employ  all  peaceful  and  honorable  means 
to  roll  back  the  waves  of  intolerance,  bigotry,  and 
ignorance,  which  threaten  to  submerge  our  cherished 
liberties. 

Article  lH. — Any  friend  of  these  pui-poses  may  be- 
come an  active  member  of  this  Association  by  the  pay- 
ment into  its  Treasury  of  the  sum  of  Ten  Dollars 
($10.00),  and  the  payment  of  One  Dollar  (.$1.00)  shall 
entitle  the  donor  to  a  certificate  of  honorary  member- 
ship for  the  period  of  one  year,  and  to  a  report 
from  the  officers  of  this  Association  of  its  receijDts, 
disbursements  and  transactions. 

A.  L.  RAWSON',  Pres. 
JOHN  P.  JEWETT,  Vice  Pres. 
E.  B  FOOTE,  Jr.,  M.  D.,  Sec. 
HUGH  B.   BROWN,  Treas. 


Executive    Committee: 
W.  McDonald.  |  C.  Winterburn,  M.  D.  |  C.  A.  Codman.     ^ 

T.  C.  XjELAND,  Chairman, 

201  Efist  list  Street,  New  York. 


42368 


